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ground, that it will be expedient also to deprive them of the power of pardon.
Dr. Lieber, at p. 164 of his work above quoted, thus expresses himself on this subject :
“ The only case in which our executives have a real vetitive [?] power, is the case of pardon, and most unfortunately it is used in an alarming degree, against the supremacy of law and the stability of right-both essential to civil liberty. I consider the indiscriminate pardoning so frequent in many parts of the United States, one of the most hostile things now at work in our country to a perfect government of law. In the only case, therefore, in which we have a real veto power, we ought greatly to modify it.”
He pursues this question in a paper written by himself, and published by the Legislature of New York, and which he gives in his Appendix.* In this paper he goes into much detail with respect to the facts in the various States, the opinions of many persons of authority regarding them, and the suggestions made for some alterations which might guarantee the community against so serious an abuse. Also, after referring to the work of MM. De Tocqueville and De Beaumont, in 1832, in which they expose “ the frightful abuse of the pardoning power in the United States in general,” and after quoting a statement “ that the New York Committee had ascertained that there are men who make a regular trade of procuring pardons for convicts, by which they support themselves,” he does not hesitate to add the following grave accusations against the governor of one of the “large” States of the Union :-
“To this statement we have now to add the still more appalling fact, which we would pass over in silence if our
* Pages 390-408.
duty permitted it, that but a short time ago the governor of a large State—a State amongst the foremost in prison discipline—was openly and widely accused of having taken money for his pardons. We have it not in our power to state whether this be true or not, but it is obvious, that a state of things which allows suspicions and charges so degrading and so ruinous to a healthy condition of public opinion, ought not to be borne with. It shows that leaving the pardoning privilege, uncontrolled in any way, to a single individual, is contrary to a substantial government of law, and hostile to a sound commonwealth.” *
To this he subjoins the following note :-
the papers report that the governor of a large State has pardoned thirty criminals, among whom were some of the worst characters, at one stroke, on leaving the gubernatorial chair.”
Among the conclusions which Dr. Lieber proceeds to draw are the following:
“ 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."
The individual States are ever anxious to keep alive the memory of the fact that they are sovereign States. Many of them number upwards of a million of inhabitants; one upwards of three millions. At their head—the type of that sovereignty, the symbol of their independent exist
* Page 397.
ence, the assertor of the majesty of their law, the representative of their dignity, collective and personal-is placed, by their suffrages, their executive officer, their Governor. Yet, throughout the Union, either calumny has basely cast upon many of those exalted public servants the accusation, that for the sake of obliging some political partisans, or for the sake of a few hundred dollars, they will recklessly throw back upon society its worst criminals; or a grave conviction is establishing itself in the public mind, of the necessity of removing from them the snare, arising either from the smallness of their incomes, or their precarious tenure of power, which tempts to such a degrada tion of themselves, and of the office they hold.
The salaries of the governors of thirteen States do not exceed 1500 dollars ; of fifteen, from 1500 to 3500 dollars ; of one, 4000 dollars; of one, 6000 dollars; of California, 10,000 dollars.
NOTE VIII. (TO CHAPTER XVI.)
As introductory to some sound opinions of Mr. Justice Kent, on the subject of the transmission of property in the United States, * I add the substance of an elaborate note in which he traces the current of opinion upon that
question in ancient and modern times.
"The transmission of property by hereditary descent, from the parent to his children, is the dictate of the natural affections, but the distribution among the children has greatly varied in different countries." • Commentaries, vol. iv. pp. 374-381.
“ If some have thought that a natural' equality belonged to the lineal descendants in an equal degree,' others have attached more importance to the fact of the eldest son being the “natural substitute for the want of a paternal guardian to the younger children.'”
“ The law of Moses gave the eldest son a double portion."
"In Athens the males took equally, and were preferred to females.”
“In Rome, the law of the Twelve Tables, in cases of intestacy, admitted equally males and females to the succession."
“ After various changes, excluding and including females, Justinian, by his 118th Novel, admitted males and females to an equality in the right of succession to intestates, and preferred lineal descendants to collaterals.
“The law of descent in the provinces of France before the Revolution of 1789, was exceedingly various, and far exceeded in variety that of the several American States.
“In the southern provinces (pays de droit écrit) the succession to intestates was generally according to the 118th Novel of Justinian, to all the children, male and female equally.
“But in the other provinces (pays coutumiers) there was much difference even in the lineal line. In the Nouveau Coutumier de France et des Provinces, connues sous le Nom des Gaules,' it was stated that the customs amounted to 547. In some, the eldest son took the entire estate. In most of the provinces he was allowed advantages more or less considerable. In some, the married daughters were excluded; in others, unmarried daughters, as against male children. In the collateral line, the modifications and diversities of succession were infinite.
“ The decrees of the Constituent Assembly of 15th March, 1790, and 8th April, 1791, first abolished the rights of primogeniture and preference of males, in the succession to intestates' estates, following in that respect the law of Justinian ; and after a distressing series of changes, retrospective decrees, confusion, and injustice, the French law of succession was permanently regulated by the Code Napoléon;' following the Novel of Justinian as to the doctrine of representation in the descending line (Code Civil, No. 739, 740, 745), but making the distribution compulsory in all cases. “In
many of the South German States, the Code Napoléon has been retained in force since its introduction by the French at the period of their conquests, as on the Rhine, in Luxemburgh, in the Grand Duchy of Nassau, and in parts of Westphalia.
In Prussia and Austria the law varies greatly, inclining in some provinces more towards the retention of the inheritance by the eldest or one of the other sons, in other provinces towards its subdivision.
“ In Denmark, by an ordinance of 1769, primogeniture gave a title to a moiety of the estate of an intestate.”
“In Spain, the law of equal partition applies, except where estates are fettered by an entail, and as nearly all are, the law of equal partition is of comparatively little consequence."*
“In several of the American colonies, before the Revolution, the English law of primogeniture prevailed in the distribution of the estates of intestates. It prevailed in Rhode Island until the year 1770; and in New York, New Jersey, Virginia, the two Carolinas, and Georgia, until the Revolution; and in Maryland until 1715.
• Page 381.