National Republican., 1877-07-04
AN EXTRAORDINARY JUDICIAL DECE
gJON

A recent decision in the courts of Ohio is
of such an extraordinary character as to
merit more than passing notice. The
death sentence in the case of q woman con-
victed of murder was committed TO impris-
onmcnt for life, and having suffered the
rigors of incarceration for some years, and
prcicrring death to further confinement, she
petitioned the court for the execution of the
original sentence, laying claim To its intlic-
tion as Il right vested by virtue of her convic-
tion, whose enjoyment she had not waived by
accepting the clemcncy of the communication,
The result Of The application was decision
that under the circumstances of the cilse
the woman was, in contemplation of law,
an escaped convict, upon whose body the
PENALTY of her ot1ense should he inflicted
upon presentation of the facts.
The theory Of this decision is something
that It would he interesting TO know and
we hope, for the benefit of the casuists and
the courts alike, il will he made public in
the form Of a written opinion by the Judge
maintaining it. Meanwhile public curiosity
will be grHtifi,d by a speculative considea-
tion of the subject
The decision cannot rest upon the doe
tvine that the clemency was not sought,
if such was the tact,) and that there
fore it may he accepted or rejected at the
pleasure Of the subject, for an act OF grace
does not imply prayer or mtercessiOn; it
proceeds from considerations Of mercy or
public policy, and is or may be wholly in
dependent of the will or wishes of the per-
son to be affected by its remissions. The
sovereign will is supreme and final in the
matter without consultation or concert with
the will of the offender. Hence the plea
that that which had been forfeited is re-
stored against the wishes of the cuiprit will
not avail as u reason for the execution of
the remitted decree. For the same reason
the decision cannot be based upon
the assumption that there is anything
in the nature Of q contract in the dispcnsa-
tion of mercy in such a ease, which requires
a formal acceptance by the condemned be
fore it can become operative TO save life.
And, besides, such n position would be alb
surd to the last degree, even without the
hypothesis that mercy is selt-app0inted and
its quality not strained.
But, notwithstanding the apparent ab-
surdity and impossibility Of the position, il
would seem almost certain that the court
has proceeded upon the doctrine laid down
in the cOntiscatiOn cases, that n pOplOn IL
not effective TO absolye the offender from
the penalty Of forfeiture until il has been
~ " Wv" ~" WI
ditions---as ifthe peril of property and that
of life could be made to depend upon the
same rule. But even then the rule would
not be applicable, for in this case there were
no conditions TO accept.
There is only one other view which il Oc-
ours to us to present, and that il equally
fatal 10 the decision. II is that the act OF
The ,cru,ye did not tender clcmency to
the, "iLrmned, but simply forbade spec
taclc deemed to be injurious to the public
morals-the hanging of n woman-so in
the minds Of u great majority of thinking
persons, ON the ground set forth in an arti.
Gle in u recent number Of this paper, that
familiarity with shocking forms and scenes
of punishment tend TO demOralize oh
servers. If this was the ground of the re-
mission, the decision Of the Executive on
the subject was final in the form rendered
and il cannot he reviewed by the judiciary