New-York tribune. [volume] (New York [N.Y.]) 1866-1924, 1873-03-07
FOSTERS CASE BEFORE TIE COY
ERNOR.
A CARD FROM MR.. PARTON

To the EdttOr ~ Ths Tribune.
SIR: Gov Dix begins well his term OF office
by doing night III n ease wherein he could gain an immr
date increase Of popularity by doing wrong Foster al
not murder Mr. Putnam. He did not strike win intent
TO kill Unless the surgeons grossly deceived nc ia
not deal fatal stroke all, but the 10 hs
death through The wOfu ignorance Of IA young gentle
man. in charge OF the hospital Nor did the Jury mean
70 doom him the scafOld. II IL true. tai, with -
detected murders per IN the city, we need exam
ples OF punishment more terrible than ordinary IN
on the other hdnd the first interest OF human welfare
Justice and no lasting good can ever dcrarnre
from IT, II is 50 difficult for pubic man TO do an act ~
justice in the face OF general cl2nor, that u seems
only right who feel the weight Of the remark
able array Of testimony and opinion In to-day IAlBCSD'
to say in hearing OF the public. From the tone %
the press and conversation far conclude GOV. Dix
will receive another proof Of truth familiar 10 Demo
Gratis OF the Jefersonan school, that. In the Unied
States always polite IN the end for public man t'
encounter any amount OF obloquy il he is only in the
right. The people VIII " see" 1t at last.
Ncic- York. March 8, 1873. JAMES PARTON
CONCERNING THE PARDOSING POWER.
To the EditOr OF Fhe Tribune.
SIR: The friends of Foster have presented
their application the Governor a manner 10 give
rise 70 interesting questions affecting exercise of the
power 10 pardon and sentences. They appear
20 rely principally upon the unanimous recommendation
Of mercy by the jury, accompanied by certificate
signed by all nearly ALL that having disagreed for =
hours and understanding themselves be smut ont hv
the ruling OF the court from finding vrict OF mnrdr
in the second degree they finally brought in yerri OF
murder in the first degree. supposng that their recon-
mendaton 70 mercy would necessarily result IN a CON
mutation OF the sentence 10 Imprisonment Tor ne TDe
state positively that they agreed that Foster
designed TO Kill Putnam, and that but for the denne
understanding that Foster would be saved from the eN
IRENE penalty by the recommendation 70 mercy they
bava he iCf Ia
now lies sentenced To this certificate are appended e
gal opinions by Eyarts Judge Davies. Judge Leou-
ard Abraham r. Lawrence, W. c. Barrett and about -
other prominent lawyers 70 the effect that the ease acAs
satisfactory proof OF reconciliation, and one requiring
the exercise of Executive clemency and also letters
from Mayor Gunther, senator Lalmbeer, the Rey. Dr.
Tying and other leading citizens, who say they have
known Foster from childhood, and who declare that be-
was . sober. Industrious, amlaDle, anu orderly man
They endeayOr explain the cruel and brutal kng 0t
Putnam on the ground that Foster, as an almost UMPIRE
eedented occurrence was that occasion drunk and
that in the excitement Of rude and sudden anger ne
struck blow which, without intention 70 xiii. resulted
in death
Let Us consider the peculiar and responsible questions
which necessarily arise before the Governor By ihe
policy Of law prevailing in THIS State and IN most other
States and countries, there is reposed somewhere .
sovereign power ameOrate the severer sentences or
the laws OF that power has 70 be exercised
with a less amount OF precedent and authority than
attend the performance by the jury and the court ~
their respective functions Nevertheless there are pn
cples which must always govern in such eases, uDea
the exercise Of this prerOgave 20 De dependent upon
the caprice individual temper or mental ihosyn"i"
ces those who for the time exercise the power The
sole question always be whether the N hand
is one 10 which the power Of pardon, repreye or "om
mutation can with propriety exercised. II sboai
never be solely and simply whether this PRIOR Judgment
or verdict sustanaDe upon the facts of the car,
III. La. Hr.H
was before contrary the object for which his cons
tutonal power OF mitigating penalties was created. ~
inquiry thus limited TO- there would never be auv
exercise OF this important executive function.
speak Of this subject entirely apart FROM the case 20
Foster any other particular Tie same principles
govern in every ease They are First, that % s
the duty OF the Executive 10 make de moro e1amua
ton Of the whole case including only facts proved
az the trial but all facts, however arising or how
ever shown, which have bearing upon the question,
whether or the prerogatiye should in the particular
case be exercised. In performing this duty be WI
naturally consider what the Court and the lury have
said but their Judgment is not conclusive Upon Inn, nor
can he discharge his duty by resting solely upon thtr
Wherever there is reasonable douDt II X "a familiar
6enef Of that doubt Wherever tue verdict OF the
gives evidence OF doubt OF hesitation m their mlnds -
TO the true degree Of CUNT II = obvious mat mat douC
survives IN all subsequent STAKES VI me ,dat 80 ma ~"
prisoner Is ehtIIiea 10 rs Iua P'le1t !" r,,
the question whether ne shau suu'i FteHtfE
or less penalty. In short. IN All stage ~ IA"
case up 70 tue scahOld steps tAc bumane pit.hlDu-
tons or the common law toueW tue ptleOuer qua t>b
their weight influence favor " human Die. " "a
indeed pity that advancing CIVILIZATION mas nos yet Dttu
able eradicate Ihe useless, purposeeSs ana Wnohy
offending members by the offended members or the com
munity. But while such penalties remain upon the
book they should be enforced IN al proper cases
The recommendation 10 mercy Dy aluy - as od as me
Jury system ITSELF and In regard 10 De LDhnr IA hs
book on thes}rtsh Constitution says. wherever cir
cumstanCes seem 10 alleviate the Rilt OF person
against whom nevertheless the proof been positive
the urv temper verdict Dy recommending 1im 10
the mercy OF the king seldom fas 10 produce 40
least lgaOu OF penalty in the debates upon
ans question in the Constitutional Convention Judge
Plat maintained n fundamental proposition that
whenever there any serious doubts eNlsng 10 the
proprety OF putting 10 death the sentence should
never be executed however aggravated the cream
stances Judge Kent declares in his commentaries:
The danger not that IN republics the victims OF tue
law will too often punishment by pardon. but
that the power will not be sufficiently eXerted
where public feeling accompanies the prosecution"
In TINS State, the Governor required by
statute "a submit 10 the Legislature statement of alt
communications pardOns, with has therefor
IN the OF Hand condemned % death and
committed. Gov. Hoffman said, Granted on the recon
mendatlon OF the Judges OF the Court OF Appeals
certify the Governor through the Chief Judge that
although the verdict warranted by the evidence
and error IN law appears on the record yet the
belongs To that class OF honlcdes IN when reasonable
doubt may be INDUCED 10 the feonious Intention 20
Kill which is Indispensable 20 constitute the crime or
murder In she second degree" After the expression ~
opinion from such source, the Governor AID not feel
Justified IN allowing the prisoners life 20 be taken On
hand, OF the European writers jnrls
prudence OF opinion that the power OF pardon IA
solecism in government, and tacit admission that the
administration OF Justice imperfect That admission
WILL think, be easily made Dy the majority OF people
this country.
Whatever NAV be the determination in this particular
case IL s TO hoped may be such shed
light upon the principles which ought 10 regulate the
employment OF this most important prerogatiye.
Netc- Tors, March 6, 1873. JUSTICE.