to enforce the edicts of the courts, which are intended for the preservation of society. While the prerogative of the Governor, under the merciful dispensation of the Constitution, should be preserved in its integrity, still this should be regulated by law, so as to be a quasi-judicial power. In what has been said, no fault is to be found with the distinguished gentlemen who have adorned the Governor's chair (for all of whom we entertain the greatest honor and respect); but the evil is in the system which enables influential criminals and their friends to invoke his clemency and influence his judgment upon unworthy subjects, by appealing, in season and out of season, to his better nature. Under present conditions, with so many problems continually pressing upon the executive for solution, he has but little time to devote to the matter of pardons; consequently, he has to trust much to others, for the most part political friends, whom he feels he has a right to trust. Under such circumstances, while he is perfectly aware that the pardoning power is not a matter of patronage, he is very liable to be unconsciously misled and deceived, more especially as his humanity is appealed to; and in his anxiety not to disappoint friends or to appear stolid and · indifferent to the pleadings of mercy, he may, for the time, be too prone to forget that larger interest which the public sustain and which depends on the enforcement of law as administered through the courts. Under the stress of importunity, no doubt, Governors of this State in the past, responding to a humanitarian sentiment, have used the pardoning power as a mere perquisite an act of grace on their part, unconsciously, it is true, but still bearing its baneful effects to the body politic. Those of us who pretend to any knowledge of the science of penology or the philosophy of punishment, know full well that when an influential criminal (by this is meant one who is able to employ the best of counsel) is brought before the courts and is tried by a jury of his peers and is convicted, and the judge refuses him a new trial, he must, as a general proposition, be conceded to be guilty of the offense charged against him. If beyond this he has prosecuted an appeal, and the State, notwithstanding all the technicalities and knotty intricacies of the law, succeeds in the court of last resort in securing an affirmance of the sentence, he could scarcely be regarded afterwards as an innocent man, the victim of unfairness. On the contrary, as a general rule, we know that his sentence is much lighter than he deserves. However, in such case the law has been put to a supreme test, and is in a measure vindicated. But what must be the feelings of that community, after the law has thus triumphed, to see the felon, before he has even darkened the doors of the penitentiary, suddenly, without

warning, turned loose amongst them, through the pardoning power. No prosecuting officer in this State but knows that in bringing an influential criminal to punishment he must have in full measure the moral support of the community, and if this is driven away or rendered powerless by executive interference with the administration of the law, he can not secure convictions. After one such experience in a community, when the district attorney again calls on good citizens to render him their moral support, men say, "What is the use? If he is convicted the Governor will pardon him, and we can not afford to antagonize the defendant and his friends in an effort to punish him, which in the end must prove futile."

Thus, as it has often happened, by the injudicious use of the pardoning power, the law is stricken down in its own sanctuary, and is rendered powerless for the protection of society by so-called executive clemency, which, no doubt, is too often extended for no cause that ought to appeal to the executive head of the State, who in this regard is made the guardian and protector of all the people. This may be termed mercy to the individual, but it is an outrage inflicted upon the people at large. It were far better if the executive would blazon over his door: "Let the law take its course, though the heavens fall," than that he should, out of pseudo-sentiment, listen with fervor to the pardon seeker, no matter how potent may be his influence, unless he comes with clean hands, and a strong and honest cause, based on something outside the matters involved, or which might have been involved in the trial.

Again, the certainty of punishment is said to be, and no doubt is, a strong deterrent to the commission of crime. To let it once be known that after an influential criminal has been encompassed in the toils of the law through the machinery of the courts, he has a sure refuge in the pardoning power of the executive, then there is no law and no restraining force. On the contrary, the courts have been trodden under foot and the majesty of the law has been insulted; and men lose respect for the law which the courts are incapable or powerless to enforce. Be not deceived. You can not sow the wind without reaping the whirlwind. No more can you override the courts without breeding disrespect for law; and in these times of trouble, nothing should be done to invite the rule of the mob.

Do not misunderstand me: I am not opposed to the exercise of the pardoning power. On the contrary, I believe it is a high and sacred prerogative, and it should be preserved in all of its purity to the executive. But I believe it should be regulated by law and on terms of equality to all men who are so unfortunate as to become

encompassed in its toils; not to the rich, the influential, alone, but equally to the poor and friendless. Like some treasured Damascus blade, the pardoning power should be kept sacredly in its scabbard and should only be unsheathed on exigent occasions, for it is the sword which cuts the Gordian knot of the law and renders its edicts powerless.

In order to guarantee the efficiency and usefulness of the pardoning power, I beg to lay down these propositions for its administration:

1. When a pardon has been applied for, after the same has been filed with the Board of Pardons, due notice should be given by said Board to some county official of the county where the party was convicted; and this notice should also be published in some newspaper at the county seat of said county.

2. The Board of Pardons should be made a creature of law, with prescribed rules of procedure. There should be an open hearing of the cases, with opportunity to introduce evidence and argument on both sides. As a general rule, the application for pardon should be founded on something transpiring since the trial, or if occurring before the trial in the courts, failure to discover same must not have arisen from want of diligence.

3. Said Board should not be authorized to act as a court of review to pass upon the correctness, regularity or legality of the proceedings in the trial court which resulted in conviction; but should confine itself to a hearing and consideration of those matters only which would properly bear on the propriety of extending clemency by the Governor in the case.

4. It should also be provided that no member of the Legislature, penitentiary official, or other public official should apply for a pardon on behalf of any convict.

5. It should further be provided that no person applying for a pardon in favor of a convict, should receive a greater fee than $100; and in every case, the person applying should be required to file an affidavit of the amount of his fee.

6. The findings of said Board should be filed with the Governor and should afford the basis of his action in extending the pardon, though, under the Constitution, he might not be circumscribed by the reasons furnished. In all cases he should be required to file a copy of the pardon with the Secretary of State, and this should be published in the county of the residence of the convict.

7.

While under the law as it now exists it seems the executive may grant conditional pardons, I believe there should be a definite statute on the subject, giving the Governor authority, on the recom

mendation of the Board either to grant paroles or conditional pardons based on certain regulations prescribed by law. In regard to this latter proposition, I would remark that a parole system has been found to work well in a number of other States where it has been tried. And it occurs to me, inasmuch as by our system of pardons and discharging convicts whose terms have expired, we are annually turning loose a population on the body politic more or less viciously inclined, it would be a better policy, so far as the welfare of the State is concerned, to hold some restraining power, upon this population. For instance, where a party is sent to the penitentiary for some felony and his punishment fixed at five years, on a record of good behavior the Board might be permitted to recommend his conditional pardon at the expiration of two or three years. He could thus be turned loose on his good behavior, with power on the part of the Governor, under certain rules, to restore him to the penitentiary, if he violated his parole. This at least would tend to make a good citizen of him, whereas, under our present system there is no such guaranty, and as a result, many convicts who have served out their terms or been pardoned, are being convicted for other crimes and returned to the penitentiary.

If the above rules are adopted and enforced, there will be more equality before the law. The poor man will then have as good a chance at a pardon as the rich and influential. There will be more certainty in results reached, and consequently, more respect for law. The Governor will be protected against the invasions of the pardon broker, while the courts will be conserved against executive encroachments. At the same time, under the parole system, a premium will be placed on the good conduct of the convict when he has been turned loose which will operate as a safeguard to the community; and it will follow inevitably that there will be a betterment in the administration of the criminal law through the courts, and a general uplifting of society throughout the length and breadth of the State.

COURSES OF STUDY IN LAW PURSUED IN THE STATE UNIVERSITY.

A PAPER READ BEFORE THE

TEXAS BAR ASSOCIATION,

BY

JOHN C. TOWNES,

PROFESSOR OF LAW, UNIVERSITY OF TEXAS.

Law is a necessity of civilized life. The complicated conditions and varied and conflicting interests incident to such life must be regulated by fairly, just and adequate rules, enforced by competent authority. The rules regulating conduct constitute the body of Substantive Law; the rules providing means and methods of enforcement constitute the Adjective Law. These two great departments of the law are directly and intimately connected. They mutually act and react upon each other. The Substantive Law, in general terms, may be said to embrace so much of peoples' common sense of justice as it can practically administer through its governmental agencies (to enact rules, however desirable abstractly, which the sovereign can not enforce tends to bring all law into disrepute, and is thus very harmful in its educational results). As the world advances in its material, mental, and moral progress, new social and business conditions must arise, and it not infrequently occurs that the methods of procedure and the remedies which were appropriate to the old conditions are entirely inadequate under the new. When these limitations become too restrictive, the moral sense and public sentiment of the community are aroused by the continuing failure of justice, and new methods of procedure are devised and the expansion of the Substantive Law is made possible.

This general truth is clearly illustrated in the establishment of the Chancery Courts and the growth of Equity in England. Equity, as contradistinguished from Common Law, had its origin