a board of pardon of judges alone, we think the case would be equally incongruous. The business of the judge, his duty, and his habit of thinking, are strictly to apply the law. He is a valuable magistrate only so long as he is a faithful organ of the established law; but, in the case of pardon, the object is neither to make nor to apply a law, but to defeat its operation in a given and peculiar

case.

In order to constitute a proper authority, to which the pardoning privilege can be safely intrusted, we ought to organize it so that the following points are well secured:

That a careful investigation of each case take place before pardon be granted:

That the authority be sufficiently strong to resist importunity: That it contain a sufficient amount of knowledge of the law, its bearing, and object:

That it enjoy the full confidence of the community.

These great objects, it is believed, can be obtained by a board of pardon, consisting of a proper number of members—say nine (in the republic of Geneva it consists of this number), with one or two judges among them, to be appointed by the legislature, with a periodical partial renovation (one-third leaving every three years), and with these farther provisions :

That the board sit at certain portions of the year-say twice: That certain and distinct grounds must be stated in every petition for pardon; and that, without them, all petitions, ever so respectably and numerously signed, be not received:

That pardon can be granted by the governor only when duly recommended by the board; and must be granted if the board recommend it a second time, after the governor has returned the recommendation with his reasons against it:

That no pardon be recommended without advertising in the county where the convict has lived previous to his imprisonment, and where he has committed his crime, that the board have in view to recommend him to pardon, and without giving proper time to act upon the advertisement:

That no pardon be granted without informing, likewise, the warden of the prison, or prisons, in which the subject of the intended pardon is, or has been, incarcerated, of the intention of the board:

That no pardon be granted without previous inquiry of the court which has sentenced the convict:

And that the reasons of the pardon, when granted, be published.

Without some such guarantees, the pardoning power will always be abused. The advertising of the intention of pardoning will not be mistaken for an extra-constitutional and illegal call upon the county to exercise functions which do not belong to it, and ought not to belong to it, as, in reality, the governor of Ohio (years ago) respited the execution of a criminal guilty of an atrocious murder, informing, at the same time, the people of the county whence the criminal came, that he was desirous of knowing whether they wished the criminal pardoned or not.1

Nor must it be believed that, while we recommend to inform the warden of a prisoner that his pardon is contemplated, we are desirous of countenancing a system of pardon founded upon the good conduct of the convicts in the prison. We consider such a measure inadmissible, for many reasons. It has been tried in France, on a large scale; and the effect was so bad that its own author obtained its abolition, confessing his error." What we desire is, that proper information be obtained before a convict be pardoned, and that no imposition take place. It frequently happens that a pardon is obtained by persons unacquainted with the culprit, and a dangerous and infamous man is returned to a community which had the deepest interest in seeing the law take its uninterrupted

course.

We think it proper that the executive, thus controlled on the one hand, and protected against importunites on the other, form a party to the pardon, because the actual release must go through his hands.

We doubt not that, if a board of pardoning were established, in a short time a series of fair principles and rules, somewhat like the rules of equity, would be settled by practice, and the pardoning would be far less exposed to arbitrary action.

Totally distinct, however, from the pardoning ought to be kept the restitution of a convict, when innocence has been proved after

1 National Gazette, Philadelphia, October 10, 1833.

2 De la Ville de Mirmont, Observations sur les Maisons Centrales de Detention de Paris, 1833, p. 55, and sequ.

conviction. It is a barbarous error to confound acknowledgment of wrong committed by society against an individual with the pardoning of a guilty person. Nothing can be pardoned where nothing is to be pardoned, or where the only pardoner is the convict. He is entitled to indemnity, and the process ought even to be called by a different name and differently to be provided for. Not long ago a person sentenced for forgery in England to transportation for a very long period or for life, we forget which, was pardoned after several years endurance of the sentence, because his innocence had been made patent. Some English papers justly remarked how incongruous a pardon is in such cases, where, in fact, the question is how a great and ruinous wrong committed by society against an individual may be repaired in some degree at least, and as far as it lies in human power. This is an important subject of its own, deserving the most serious attention of all civilized states, but does not fall within the province proper of pardoning.

FRANCIS LIEBER.

I append to this paper, besides the additional notes which the reader has seen, the following three items:

The official reports of the attorney-general of Massachusetts show that:

In 1850, prosecutions of crime cost in that state

$66,589 36

71,078 18

63,900 68

To this must be added the cost of the courts, detective police, rewards, penitentiaries, prison support.

When we speak of the cost of crime in general, we must not only take into account the above items, but also the waste of property by criminals, and the loss of labor, for criminals by profession do not work, therefore do not produce.

The following extract of a speech by Lord Palmerston, secretary for the home department, June 1, 1853, in the commons, is very remarkable. C'est tout comme chez nous. I do not mean our quakers act thus, but women inconsiderately get up petitions, and are joined by busy religionists. Lord Palmerston said:

"That would be a very great evil, were any change of the law to bring it about. But let us see how the thing would work. Even

now, in cases of disputed rights of property, although it is generally matter of great scruple of conscience to depose to statements which are not consistent with truth, yet we frequently see evidence brought before courts of law not founded in fact. But in matters regarding life and liberty, I am sorry to say that benevolent individuals have very little conscience at all. (Hear! and laughter.) You may depend upon it that I have had too much experience of the truth of what I have stated. I get applications signed by great numbers of most respectable persons in favor of individuals with regard, to whose guilt there can be no possible doubt, or any doubt that they have committed the most atrocious crimes. That is a matter of every-day occurrence. Not long ago, a member of the Society of Friends actually tried to bribe a witness to absent himself from the trial of a prisoner, in order to screen the man from punishment, of whose guilt no human being could doubt. If you had these second trials, you would have these pious frauds as frequently committed."

Lastly, I would put here a short newspaper paragraph-very simple yet very fearful.

"In the course of an editorial article, intended to show that it is the certainty, and not the severity, of punishment which is needed for the suppression of crime, the Pittsburg Commercial makes the following statement :-1

"In fifteen years, during which the annals of crime in this county have been stained by more than fifty murders, a single instance of hanging has been affirmed by the executive as the measure of extreme penalty due; and there justice was cheated of her victim by suicide !'"

1 National Intelligencer, Washington, July 12, 1853.

A PAPER ON SUBJECTS CONNECTED WITH THE INQUISITORIAL TRIAL AND THE LAWS OF EVIDENCE.

FEW things, in my opinion, show more distinctly the early English character than the fact that, without vindictiveness or cruelty in the national character, the penal law inflicted death with a fearful disregard of human life, while at the same time the penal trial was carried on with great regard for individual rights and for the mode of ascertaining the truth. The English were from early times a peculiarly jural nation.

Those people who have the inquisitorial trial, on the other hand, were in some instances far less sanguinary in their punishments, but perfectly regardless of the trial, or, rather, the trial seemed to have been established chiefly for the prosecuting party. It aimed at knowing the truth; the means to arrive at it were little cared about. The rights of the prosecuted person appeared in a shadowy, undefined way. And all this continues to exist in many countries.

I do not speak here of the worst countries only. I do not mean to advert to the Austrian trial, as it was before the late revolutions. I refer, for instance, to the German penal trial; and mean by it the penal trial of the countries in which the common German law prevails, as well as those where, as in Prussia, a trial by statute law is introduced. The late revolutions have changed some items. The main ideas, however, remain, in many cases, the same.

Now, when a person accustomed to a regular and well-guarded penal trial reads such works as Feuerbach's Criminal Cases, or any detailed description of a penal trial, the laxity and incongruity of the procedure strike us among other things with reference to the following points:

1. The inquiring judge, that is, the judge who has been detailed, to use a military term, to lead the whole inquiry, and who has been day after day with the prisoner, and only one witness, viz. the secretary, and whose whole skill has been exerted to bring the prisoner