shows that in the period from 1807 to 1846 every eighth convict was pardoned..

We beg leave to copy the chief result of the table just mentioned.13

13 While the work was passing through the press, a document, published by the Massachusetts convention to amend the state constitution, reached the writer. It contains "A List of Pardons, Commutations and Remissions of Sentence, granted to Convicts by the Executive of the Commonwealth for the ten years including 1843 and 1852." Unfortunately this important paper, which contains the names of the persons, sentences, number of years sentenced, number of years remitted, and the crimes, does not give any classifications, summings-up or comparisons with the number of sentences and unremitted punishments. It only exhibits the following recapitulation for 10 years from 1843 to 1852:

This paper will doubtless be made the basis of very instructive statistical calculations, and it is greatly to be desired that other states would follow. As it is, I am incapable of giving at this moment any other information. It would require other documents, which I have not about me. My remarks are not intended to reflect on the gentleman who has drawn up the paper; for it appears that the convention ordered the paper on the 18th of June, and on July 5th it was handed in. There was then no time to collect the materials for comparisons such as I have alluded to. What is now most important to know is the sum total of what sentences for what crimes were chiefly remitted or pardoned; for what reasons, what proportion pardons, &c., bear to unremitted sentences, for what crimes and what duration these sentences were inflicted, of what countries the pardoned, &c., convicts were, and what proportion the pardoned, &c., short sentences bear to pardoned, &c., long sentences or death.

VOL. II.-14

Table showing the pardons in the following prisons in one or several years from 1845 to 1846.

one convict pardoned of 5.87 convicts.

Vermont,

If we take the above list as a fair representation of the whole United States, we shall find that one convict of 26.33 is pardoned. But we fear that this would not be very correct; nor must it be believed that any average number fairly represents the average mischief of the abuse of pardoning. Although there be but very few convicts pardoned in a given community, yet incalculable mischief may be done by arbitrarily or wickedly pardoning a few prominent and deeply stained criminals, as the average temperature of a place may turn out very fair at the end of a year, while, nevertheless, a few blasting night-frosts may have ruined the whole crop.

It ought to be kept in mind that, in all calculations of probability, averages must be taken with peculiar caution in all cycles of facts in which a peculiarly high or low state

cannot be taken as an The effects of these

of things produces effects of its own, differing not only in degree but also in kind from the effects which result from the more ordinary state of things. In these cases averages indicate very partial truth only, or index of the desired truth at all. maxima or minima are not distributive, and being effects of a distinct class they cannot be counteracted by other facts in the opposite direction. This applies to moral as well as physical averages, and before we apply ourselves to averages we must distinctly know whether the elements we are going to use stand in the proper connection with the nature of the result at which we desire to arrive.14

The abuse then exists, and exists in an alarming degree. The question arises, how is it to be remedied?

In trying to answer this question, we would preface that we are well aware that, unfortunately, the pardoning power is, in almost all states of our confederacy, determined by

14 A few examples may illustrate the truth too often forgotten: No farmer can determine the fitness of a given climate for the culture of a certain plant from the mean heat of the summer or the mean cold of the winter, for the mean heat does not indicate whether the weather is uniform or violently changeable; the mean interest at which money may have been obtainable in the course of the year does not indicate the truth, unless we know that it has not been peculiarly low at some periods and extraordinarily high at others; the general criminality of a community cannot be calculated from the percentage of crime, unless we know that there has not been a peculiarly disturbing cause: for instance, one man who has murdered half a dozen of people in a comparatively small community; and the mischief produced by pardons cannot be calculated by the average percentage alone, if we do not know that among these pardons there were not some peculiarly arbitrary or peculiarly hostile to the ends of justice. A wholesale pardon may be warranted by the truest principles, and a single arbitrary pardon may shock the whole community.

their constitutions, and cannot be changed without a change of these fundamental instruments. The object of the present paper, however, is not to propose any political measure. We shall treat the subject as a scientific one, and an open question, irrespective of what can or may be done in the different states in conformity with existing fundamental laws. It is necessary, before all, to know what is the most desirable object to be obtained. After this has been done, it will be proper for each party concerned to adopt that practical course which best meets its own peculiar circumstances, and to settle how near its own means allow to an approximation to the desirable end.

Many vague things have been asserted of the pardoning power by writers otherwise distinguished for soundness of thought, because they were unable to rid themselves of certain undefined views and feelings concerning princes and crowns. Some have maintained that the pardoning privilege can be justified only in the monarchy, because the monarch combines the character of the legislator and executive, while Montesquieu wishes to restrict the right to the constitutional monarch alone, because he does not himself perform the judicial functions. All these opinions appear to us visionary and unsubstantial. There is nothing mysterious, nothing transcendental in the pardoning power. The simple question for us is, Why ought it to exist? If it ought to exist, who ought to be vested with it? What are its abuses, and how may we be guarded against them?

We have already seen that doubtless the pardoning power ought to exist:

That there is no inherent necessity that it ought to exist in the executive, or in the executive alone:

That a wide-spread abuse of the pardoning power exists, and has existed at various periods:

That the abuse of the pardoning power produces calamitous effects:

That the executive in our country is so situated that, in the ordinary course of things, it cannot be expected of him that he will resist the abuse, at least that he will not resist it in many cases:

And that the chief abuse of the pardoning power consists in the substitution of an arbitrary use of power or of subjective views and individual feelings, for high, broad justice, and the unwavering operation of the law, which ought to be freed from all arbitrariness.

We know, moreover, that all our constitutions, as well as the laws of England, actually restrict the pardoning power in some cases; for instance, regarding fines to be paid to private parties or impeachments; and in most of our states the executive is not invested with the right of pardoning treason, which can only be done by the legislature. 15 In others, again, the governor has no authority to pardon capital punishment before the end of the session of that legislature which first meets after the sentence of death has been pronounced; and in other states he has only the power of respiting the capitally condemned criminal until the meeting

15 The Constitution of the late French Republic of 1848 has this provision:

"Art. 55. He (the President of the Republic) shall possess the right of pardon, but he shall not have the power to exercise the right until after he has taken the advice of the Council of State. Amnesties shall only be granted by an express law. The president of the republic, the ministers, as well as all other persons condemned by the High Court of Justice, can only be pardoned by the National Assembly."

I do not consider it desirable that the pardoning power be given or imposed upon a political body already existing for other purposes, as in this case to the Council of State; but I have cited this provision to show that the French at that time did not consider the limitation of the pardoning power in the executive unfavorable to popular liberty.