PARDON US

If it's the third Thursday of the second month of the year, then it must be time for Judge Milton Hirsch's Constitutional Calendar. And as you can see, for reasons not clear, Presidential Pardons seem to be on the good Judge's mind. 

The First Amendment is on our mind what with the recent revelation that Justice Thomas is spoiling to lay originalist intent to the US Supreme Court's landmark Sullivan decision on libel. Stare decisis and precedent are to be respected, especially by judges who are the anthesis of activist Judges like conservative Justice Thomas...except when his ox is gored on libel or abortion. Then it's RBG bar the door! To that end, we publish our own Judge Zilber's recent First Amendment order. And we note this- when it's neighbor vs. neighbor in a condo dispute, then get us some popcorn and a ring side seat because it's gonna be a blast to watch. 

In early 1862, President Lincoln was deluged with requests for the pardon of Nathaniel Gordon, an American sea captain who was scheduled to be hanged on Feb. 7 of that year.  Gordon was a slave trader, and had been arrested by the navy while at sea with a cargo of between 800 and 900 Africans bound for sale in Cuba or Brazil.  In the four decades since the U.S. had outlawed the international slave trade, many such smugglers had been captured, some tried and convicted; but none had ever faced the extreme penalty called for by the law.

            Lincoln agonized over his decision.  “You do not know how hard it is to have a human being die when you know that a stroke of your pen may save him,” he explained to a friend.  On Feb. 4, the president entered an order granting Gordon, not a pardon or commutation, but a respite.  Noting that the many “application[s] made for the commutation of his sentence may have prevented the said Nathaniel Gordon from making the necessary preparation for the awful change which awaits him,” Lincoln reset the date of execution to Feb. 21.  “In granting this respite, it becomes my painful duty to admonish the prisoner that, relinquishing all expectation of pardon by Human Authority, he refer himself alone to the mercy of the Common God and Father of all men.”  Replying to one of the many petitioners on Gordon’s behalf, Lincoln explained:

I believe I am kindly enough in nature, and can be moved to pity and to pardon the perpetrator of almost the worst crime that the mind of man can conceive or the arm of man can execute; but any man who, for paltry gain and stimulated only by avarice, can rob Africa of her children to sell into interminable bondage, I never will pardon.

            On Feb. 21, 1862, Nathaniel Gordon became the only man in American history to be executed for the crime of slave trading.

[Judge Zilber's order coming shortly]