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cause 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.


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 1851, “

66 71,078 18 1852, "


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, on 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 bustling 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. ('Fear!' 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 :20

“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 !"

20 National Intelligencer, Washington, July 12, 1853.




Few things, in my opinion, show more distinctly the early English character than the fact that, without rindictiveness 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.

VOL. II.-15

The late revolutions have undoubtedly changed some items. The main ideas, however, have remained the same.

Now, when a person accustomed to a regular and wellguarded 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 to confession, or to establish the crime, is also frequently the first sentencing judge, and always very powerfully influences the sentence. If there is a separate sentencing judge, all the “acts,” that is, all that has been written down, is handed over to him, and from them he frames his sentence, upon which the other judges, if there are any, vote in plenary session. As a matter of course, they cannot know much about the subject, and must be guided by the report the sentencing judge makes.

2. The inquiring judge is, in many cases, what we would consider wholly unrestricted. He takes hearsay evidence, and all sorts of evidence, if he thinks proper. He is unrestricted as to time, and an accused person may be kept for years under trial. He is allowed to resort to all kinds of tricks, in order to work upon the imagination of the prisoner; for instance, calling him up at midnight, examining him and suddenly showing a skull to him. Every worthy and puerile motive to speak the truth, and confess the offence, is resorted to.

3. There is no regular indictment, nor does the accused know in his examinations what is charged against him; at least the law does not demand that he shall know it.

4. The prisoner is constantly urged to confess; the whole trial assumes the deed charged against the prisoner, and treats him accordingly. Indeed it may be said that, although not avowedly, yet virtually the inquisitorial trial assumes in a very great degree the character of an accusation which the accused has to disprove, not one which the accuser is bound to prove. In some countries and in certain cases this is positively the case. Even the French penal trial is by no means wholly free from this serious fault.

5. There is no physical torture resorted to in order “ to bring out the truth, since the positive abolition of the torture, but the moral torture which is applied is immense, and the judge is authorized by law to punish with lashes or other physical means every contradiction or lie proved from the convict's own statements. That this can easily lead to all sorts of abuses is obvious.

6. There is no cross-examination of witnesses, and no stringent law to compel witnesses in favor of the prisoner to appear before the court.

7. Court and police frightfully mingle in their functions, in the first stages of the trial.

8. There is a most sorrowful defence, cautious, fearful of offending the judges upon whom the promotion of the defensor depends, and empowered to obtain certain points further cleared up only through the court, which is the prosecuting party. Besides, the defence only begins when the whole investigation by the court is at an end, that is to say, all the “acts” are handed over to the defensor. He studies them and writes the defence, which is given along with the “acts” to the sentencing judge.

No wonder that the Germans universally called for a total change of such a trial, and that, as I stated before, some changes have taken place.

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