Year: 1877

The message of Governor Irwin makes
some excellent suggestions in reference to
matters of State interest, and although a
very lengthy document, will well repay
perusal. There is one part of the mes
sage which should attract the eye of leg
isators, who could act upon the sugges-
tions with profit to the morals of the COM
munity. 1t is the theory OF law that it
bears alike upon all /; that all are equally
amenabe to its penalties. But, like
many other theories, this is not borne ou.
by the practice, the same law which in
iliets heavy penalty upon one man, up
on another for the same otfense lays the
lightest punishment possible.


As each of the criminals is convicted
under precisely the same statute, the diff
ference in the weight of punishment in
flicted comes from that portion Of the law
which leaves the penalty in the discre-
tion of the court. Take for instance The
crime OF assault to murder. The law
provides that the party convicted shall be
punished by imprisonment in the State
Prison not less than one, nor more than
fourteen years. Here, it will be seen at
once that an enormous power is vested
with the presiding judge. lie may SEN
tence the party convicted to one years
confinement, or he may extend the term
to fourteen years. SO it is also in regai
to other crimes. Manslaughter is pun
ishable by imprisonment not to exceed
ten years. Other offenses against the law
have yet wider range for the exercise of
discretion, where the punishment which
follow conviction may be either a fine.
imprisonment in the county Jail, or i'm
prisonment in the State Prison for ten
years. With such wide range for the
punishment of offenders against the law,
it is then no wonder that as Governor
Irwin justly observes some are punished
for an ofense twice or three times rs Sc
committed under parallel circumstances.
This state Of affairs is brought about by
the widely diverging views with which
courts exercise the discretion allowed
them under the law. Perhaps bis Ex-
cellency may be n little in error in as
cribng the reasons why some Courts are
prone to deal more severely with cIimi.
mails than other Courts do, but it will not
be denied that if the fault lies in the law,
the remedy lies there also aud should be
exercised. A crime should have the same
penalty wherever it be committed. Ifex-
tenuating circumstances are shown they
should mitigate the sentence of one man
as well MS Of another, or if it is perpetra-
ted under circumstances Of unusual afro
city, it should in all cases justify the ex-
treme penalty Of the law. But different
men will take different views of the same
matter, and where authority happens for
the time being TO be vested in them, they
carry into practice their convictions.


We do not think that all discretion
should be taken away from the Courts
but only that the legislation should be 50
directed rs to endeavor to secure Uniform
ity Of punishment for the same degree Of
otlenses. Tho law cannot always Judge
correctly OF the temptations to a crime,
or Of the previous character of those who
participated in ii. There are times when
circumstances call for exercise of the
greatest degree of leniency compatible
with justice there are times again when
the utmost rigor of the law seems hardly
adequate punishment. That law which
gives the jury the power to decide what
shall be the punishment for murder in the
first degree, under which law some mur-
derers are executed while others are i'm
prisoned for life seems to work well and
be one means of securing more convic
tions than could be obtained were the
penalty death alone. But it is n delicate
matter to define just where the line shall
be drawn at which the mandatory power
OF the law shall cease and the discreliona-
ry power of the Court begin, and we
opne the Legislature will find it difficult
to say exactly within what limits the dis
erection Of u Court or Judge shall be con-
fined,