Journal of and Criminology

Volume 32 | Issue 1 Article 3

1941 The ommonC Law History of Probation--An Illustration of the Equitable Growth of Criminal Law Frank W. Grinnell

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Recommended Citation Frank W. Grinnell, The ommonC Law History of Probation--An Illustration of the Equitable Growth of Criminal Law, 32 J. Crim. L. & Criminology 15 (1941-1942)

This Article is brought to you for free and open access by Northwestern University School of Law Scholarly Commons. It has been accepted for inclusion in Journal of Criminal Law and Criminology by an authorized editor of Northwestern University School of Law Scholarly Commons. THE COMMON LAW HISTORY OF PROBATION An Illustration of the "Equitable" Growth of Criminal Law Frank W. Grinnell"

The practical importance of continued of a in the case before the study of probation in different states, Court and held that all probationary as well as in the federal system under powers which had been exercised by the Director of the new "Administra- Federal judges during the past fifty or tive Office of the United States Courts," sixty years without specific directions suggests that some useful purpose may in acts of Congress were mistaken and be served by the following condensa- illegal. In view of the fact that the tion of a study published 2 twenty-four Court knew that there were several years ago. It deals with forgotten but thousands of convicted persons who very practical history, and, like an ar- were out on probation by the acts of row shot into the air, it may land some- Federal judges in different parts of the where to stir the imagination of some country, and had been living reputable judges and prosecutors, in unexpected lives, the Court suggested that, so far ways, as to current and future develop- as any injustice to them was concerned, ment of the criminal "adjective" law "a complete remedy may be afforded in accordance with the orthodox com- by the exertion of the pardoning power," mon law tradition. The approaching and "that the exceptional conditions formulation of rules of criminal pro- ...require that we exercise that rea- cedure by the Supreme Court of the sonable- discretion with which we are United States under the recent act of vested to temporarily suspend the issue congress3 furnishes an additional rea- of the writ (of mandamus), so as to son for retelling the story to revive afford ample time for executive clem- professional recollection. It may help ency, or such other action as may be to modify the contempt sometimes ex- required to meet the situation." There- pressed for early legal history and after about 5,000 persons were par- practices. doned by the president--one of the In December, 1917, in the case of largest wholesale acts of clemency in ' 4 "Ex parte United States, Petitioner, our history. for a writ of mandamus to Judge Killits While the case arose in Ohio where of the Federal District for Northern the practice in the Federal Court had Ohio, the Supreme Court decided to been to impose sentence and then sus- issue the writ directing Judge Kiflits to pend its operation, yet the argument revoke an order suspending execution in the opinion dealt with the practice in

160 State St., , Mass. 3 See Mr. Dean's article in 24 Am. Jud. Soc. 2Mass. Law Quart., No. 6 (August, 1917), pp. Journal (Oct., 1940), 81-83. 591-639. 4 242 U. S .... [ 15] FRANK W. GRINNELL

the First Circuit of "placing on file," "Until the actual sentence the Court or placing on probation after never makes any final decision as to whether it will or plea of guilty, sentence at all; and if so, but before sentence. as to whether the punishment shall be During the argument of this case R. W. fine or , minimum or max- Hale, Esq., of the Boston bar, and the imum ... "The Assistant writer, were requested by one of the United States Attor- neys for the District, and other persons federal judges of the First Circuit, to connected with prosecutions, have been prepare and file a brief, as amici curiae, generous in giving their time in such cases. Helpful reports are secured in from support of this prac- them. Voluntary service is also received tice, as it had been followed in this from the probation officers of the Su- circuit for, at least, sixty years, and in perior Court of Suffolk , Massa- chusetts, and from other people with the state courts for a much longer time, similar training. There have been cases as part of the judicial function without of unusually young defendants, and, in these, persons connected with express statutory authority. It was in the Ju- venile Court of the City of Boston have the course of the preparation of that also freely given important and volun- brief that parts of this article were com- tary service. In~every case which arose before the present case began, the pro- piled. ceedings have had the assent of the United States Attorney. The Practice in the First Circuit "This has been the practice of the Which was Held Illegal. United States District Judge and his predecessors in office for at least sixty The description of the practice from years; and, until the present discussion, the brief referred to was as follows: no question has ever been raised as to its legality. 'In this Court cases often occur in In the case of United States v. which the judge believes that Margaret Mulhall, on June 2, 1914, the neither an United immediate prison sentence nor an im- States Attorney for the District stated in open court that mediate fine-which often amounts to a the Attorney short prison sentence-is in the General of the United States requested best in- the terest of the United States. In these exercise of the power to suspend cases a plea or verdict of guilty is taken judgment and sentence." .. . and recorded, but no entry is made ac- The Massachusetts Story and Its cepting or adopting that plea or verdict in any way, and the case is continued Juristic Significance without any judgment; that is to say, "Massachusetts has been called without sentence. The case being con- the tinued, the defendant is admitted to . 'home of probation.' . . . The practice In suitable cases he is required to furnish antedates the statutes .... The statutes sureties, but generally the bail are not have indeed been chiefly the record of persons whose pecuniary responsibility is important. They are chosen for their an accomplished idea."-Mass. Proba- fitness to have that custody of the of- tion Manual. fender which common-law bail always The particular reason for recording have, and they are chosen as persons who are likely to be able, in consequence the Massachusetts story, aside from of such custody or supervision, to give purely historical interest, is to avoid intelligent information about the of- any inference from the opinion in the fender. It is hoped that their influence will cause some amelioration to his be- Killits case that the Supreme Court of havior. the United States intended to draw a HISTORY OF PROBATION line between the recognition of the tion from punishment, which was de- judicial development of principles in scribed as "benefit of clergy." This their application to administrative exemption, which originated in the problems in civil causes and similar claims of ecclesiastics to be exempt development of principles in their from criminal process before the secu- application to criminal administration. lar courts, was subsequently extended It is common knowledge that equity by various English statutes to include jurisdiction developed, not by legisla- also peers, who were presumed to be tion, but through the application of able to read, and to commoners who principles by courts in providing a could establish themselves as "clerks" more flexible system of remedies as life by proving that they could read. (See became more complex, in order to 4 Blackstone, Chap. 28.) alleviate the strictness of the common It did not operate even-handedly for law rules which, unless so alleviated, all classes of men, as indicated by the would have resulted in much injustice. foregoing statement, but it made the It is also common knowledge that not world somewhat less bloody for the only were these equitable principles following reasons, as stated by Bishop applied in the chancery courts, but that in the eighth edition of his "Criminal many of them found their way into the Law," Sect. 936, page 565: structure of the common law system "Since comprehend a large through the gradual recognition by part of the , the uniform infliction of death would be too bloody. To which common law courts of some of these evil the wisdom of our forefathers found principles which found expression a remedy in the plea of clergy or benefit through the development of remedies, of clergy. . . . A word explanatory of this . . . by way of memento of de- as most law ultimately finds expres- parted piety, humanity and genius will sion, in the varied growth of the action not be inappropriate." of assumpsit, in the .introduction of "Sect. 938. In this country (America), the benefit equitable defenses, and of clergy is ordinarily ac- otherwise. knowledged as belonging to our common Now let us turn to the history of law."1 criminal administration and see what And so also in Foster's "Crown Law" happened. Prior to the adoption of the (second edition, 1791) appears the American Constitutions there were following passage: "But light and sound sense have at various methods by which in some length, though by very slow degrees, cases the strict legal punishment of made their way to us; we now consider was alleviated, at times when the benefit of clergy, or rather the benefit theft was punished by death-the of the statute, as a relaxation of the rig- our of the law, a condescension to the bloody period of criminal administra- infirmities of the human frame; and tion which stirred the soul of Samuel therefore in the case of all clergyable Romilly. felonies we now measure the degree of. punishment by the real enormity of the "Benefit of Clergy" offense; not as the ignorance and super- These methods were, first, in some stition of former times suggested by a senseless dream of sacred persons or of the capital crimes, the exemp- sacred functions." FRANK W. GRINNELL

For an account of the history of Bishop's clerk, upon the demand of legit "benefit of clergy" from a different or non legit, answered legit; and there- upon I wished him to consider, and told angle, see Bentham, "Principles of the him I doubted he was mistaken, and bid Penal Law," Part II, Book V, Chap. the clerk of the assizes ask him again, IV, Bentham's works, Bowrings ed., legit or non legit, and he answered again somewhat angrily, legit: then I bid the Vol. I, 505. clerk of the assizes not to record it: and As an instance of the practical dis- I told the parson he was not the judge cretion in regard to the mitigation of whether he read or no, but a ministerial officer to make a true report to the court. punishment exercised by the courts in And so I caused the prisoner to be the seventeenth century and the brought near and delivered him the bishop's clerks who performed the book, and then the prisoner confessed he could not read; whereupon I told the function of the modem probation parson he had reproached his function, officer in advising the Court as to the and unpreached more that day than he right of prisoners to claim the benefit could preach up again in many days; of clergy, the following passage, printed and because it was his personal offence and , I fined him five as "Note L," at page 103 in the third 'marks' (Kel. Rep. 51). Instances of this edition, of Romilly's speech of 1810. kind afforded no just cause of complaint. hereinafter referred to, is illuminating: The convict it is true suffered the greater "Before punishment for his offence because his the reign of Queen Anne, parents had neglected his education, but when the benefit of clergy was allowed such was the law, and though the judge to such only as could read, and when in his discretion connived at a departure consequently the ignorant were doomed from it in nineteen cases out of twenty, to die for offences for which a slight he could hardly be said to deserve cen- punishment only was inflicted on those sure when in the twentieth he only took who had received some educaton, and care that the law should not be evaded." who were therefore less excusable, the (Romilly's "Observations on the Crim- gross absurdity and injustice of the law inal Law of England," etc., third edition, was in a considerable degree corrected pp. 103, 104.) by the falsehood of the clerk who was to report of the convict's learning, and by The British soldiers who were con- the connivance of the court. But this victed after the Boston Massacre connivance was not universal, the judge escaped the penalty by claiming the exercised his discretion whether to con- nive or not. In common cases he re- benefit of clergy. ceived the false certficate without in- This appears on page 120 of the quiry, but where he thought that he dis- cerned circumstances of aggravation, he pamphlet report of "The of the scrutinized strictly into the prisoner's British Soldiers of the 29th Regiment ability to read. Such at least was the of Foot For the Murder of Crispus practice of Lord Chief Justice Kelyng, as he himself informs us, 'As the Lent Attucks et al on Monday evening, Assizes at Winchester, 18 Car. 2, the March 5, 1770, printed and published clerk,' he says, 'appointed by the bishop by Belcher and Armstrong, No. 70 to give clergy to the prisoners, being to State St. 1807," as follows: give it to an old thief; I directed him to deal clearly with me, and not to say (Six found not guilty) legit in case he could not read; and "Matthew Kilroy and Hugh Mont- thereupon he delivered the book to him, gomery, not guilty of murder but guilty and I perceived the prisoner never of manslaughter. . . . Kilroy and Mont- looked upon the book at all, and yet the gomery prayed the Benefit of Clergy HISTORY OF PROBATION

which was allowed them, and thereupon more adequate remedy may be pro- they were each of them burnt in the vided: hand in open court, and discharged." Be it therefore enacted by the Senate Emory Washburn, writing in 1840, and House of Representatives, in Gen- eral Court assembled, and by the in his "Judicial History of Massachu- authority of the same, That from and setts," says (at p. 194): after the publication of this law, the "In criminal matters . . . the com- plea of benefit of clergy shall not be mon law was in a great measure re- used or allowed in any cause whatsoever, tained, even to the benefit of clergy. unless in the prosecution for crimes The last instance of this, that I have committed before the passing of. this discovered, was the case of James Bell act, for which the said plea of benefit of in March, 1773. He was convicted of clergy would have then been allowed. manslaughter in the Superior Court in And be it further enacted by the Boston, where he pleaded the benefit of authority aforesaid, That if any person clergy and was accordingly burned in shall be convicted of any crime wherein the hand and discharged." by law the plea of benefit of clergy was "Many other instances might be cited heretofore allowed, and for which, with- where prisoners were admitted to the out such benefit of clergy, he must have benefit of clergy. Thus in 1770, George been adjudged to suffer the pains of White and Patrick Freeman having been death, such person shall be set upon the convicted of burglary were burnt in the gallows for the space of one hour, with hand, having claimed the benefit of a rope about his neck, and the other end clergy." 5 cast over the gallows, pay a fine, not exceeding five hundred pounds, be After the adoption.bf the constitu- whipped, not exceeding thirty-nine tion, however, the uneven application stripes, and be bound to the good be- of the law of benefit of clergy resulted haviour, or suffer one or more of the above punishments, according to the in its abolition in Massachusetts by the aggravation of the offence; and so often following statute: as he shall be convicted of the same crime, shall suffer the punishments 1784-CHAPTER 56 above mentioned, or any one or more (January Session, Ch. 23) of them, unless some other punishment shall be, or may have been by the laws Chap. 56. AN ACT FOR TAKING AWAY THE BENEFIT OF CLERGY IN ALL CASES of this Commonwealth assigned for such crime, in which case the offender shall WHATSOEVER, AND DIRECTING ADEQUATE PUNISHMENT FOR THE CRIMES WHERE THE suffer as by such law is or shall be directed. March 11, 1785. SAME USED TO BE ALLOWED. Preamble. Whereas, the plea of benefit See Revised Statutes of 1836, c. 133, of clergy, though it was originally §15. founded in superstition and injustice, Security for "Good Behavior" yet by long usage and the humanity of criminal law, is so interwoven with A second method of alleviating strict it as to become very essential in its punishment was in lesser crimes by present system: but forasmuch as the operation of it consists only in the the process of holding to security for mitigation of the punishment for those good behavior or "good abearance." crimes where it is allowed, which in This jurisdiction was described in early most cases operates very inadequately and disproportionately,and for which American cases as follows: 5 An interesting passage in Dane's Abridgment, Benefit of Clergy shall not be used or allowed upon of any crime, for which, by any chapter 193, article 40, quotes from the Act of statute of the United States, punishment is, or Congress of April 30, 1790, as follows: "That the shall be, declared to be death." FRANK W. GRINNELL

In Com. v. Duane, 1 Binney, 98, note, And since I have known it allowed as a good Cause by the Judges of Assise."' 8 Tilghman, C. J., said: the good "Surety for good behavior may be The jurisdiction to grant considered in two points of view. It is behavior continued, as it was not con- either required after conviction of some fined to any class of persons and it is indictable offense, in which case it forms still part of the jurisdiction of Massa- part of the judgment of the Court, and is founded on a power incident to courts chusetts courts. (Cf. also U. S., R. S., of record by the common law, or it is §727 and New Fed. Code, §270.) demanded by judges or justices of the peace out of court, before the trial ... Technical Defenses in pursuance of authority derived from a Statute made in the 34th year of In addition to the other methods of Edward 3." mitigating the extreme severity of the The report of this case in "Hall's earlier criminal penalties, we should American Law Journal and Miscel- not forget the practice of subjecting laneous Repertory," 168, must have the indictment to the keenest technical given it wide currency. Hall's was the scrutiny and granting motions to quash first American law journal, and this the after verdict, with the result of freeing second number. the prisoner. This practice of extreme In Estes v. State, 2 Humphreys strictness in dealing with criminal in- (Tenn.), 496, 498, it is said: dictments has been the cause of much "Binding to the .good behavior was a ridicule in modern times, but its origin discretionary judgment, at the common was humane and was one of the meth- law, after a conviction for a gross mis- ods by which the courts "administered" demeanor, before the passage of the statute of 34 Edward 3," practical justice at a time when the inertia of the community was such that and it was held that that was the early it still allowed excessive penalties to law of Tennessee. remain upon the statute books. The It was a proceeding which was well necessity and the consequent practice known throughout the New England of such strict requirements in criminal States. For instance, Burns, Justice, pleading have disappeared as the more in the Dover, N. H., abridgment by humane attitude toward criminals has Eliphalet Ladd, of 1792 (pp. 400, 412), developed in Massachusetts. Accord- contains a reference to the following ingly, this early strictness of criminal passage in Dalton's "Country Justice," pleading may fairly be added to the edition of 1746, page 288, where Dalton "benefit of clergy," to "good behavior," says: and to suspension of sentence, com- "I lately granted the good behavior against one for that he had bought Rats- bined with a judicial recommendation bane and mingled the same with Corn of as a further of the and then wilfully and maliciously did central idea or principle which modern cast the same among his Neighbors Fowls, whereby most of them died .... analysis finds to be part of the essential IThe same passage occurs in the folio edition Hart, 30 How. State , pp. 1129 and 1344, and of Dalton of 1691. Cf. Chitty Crim. Law, 2d ed., Reg. v. Dunn, 10 Ad. & El. 1026, at 1041; Queen Vol. I, chap. 15. 16, Rex v. Draper, and Rex v. v. Richardson, 8 Dow. Pr. 511. HISTORY OF PROBATION meaning of the phrase "to administer ment to the crime in the light of the justice." circumstances appears about 1830, in the beginning of the recorded history of the Compassionate probation system in Massachusetts. That The other indirect methods of miti- probation system appears to be simply gating the severity of penalties are a modern scientific application of the shown in the following passage from underlying principle in the older and the great speech of Romilly in the cruder methods already referred to. It House of Commons on February 9, was all a part of the gradual and more 1810, on a motion for leave to bring in humane study of criminal administra- bills to repeal the Acts of 10 and 11 tion, to which the Marquis of Beccaria William III, 12 Ann and 24 George H, had given so strong an impetus by his which made the crimes of privately little book published in the middle of stealing in a shop goods to the value of the eighteenth century. It is quite five shillings and of stealing in a dwell- probable that some form of probation ing house property of the value of forty practice was followed when possible in shillings, capital felonies. cases where the circumstances war- "In how many instances such crimes ranted it, before the recorded story have been committed, and the persons begins. robbed have not proceeded so far The beginning of the recorded story against the offenders as even to have in Massachusetts appears to be the case them committed to prison; how many of Commonwealth v. Chase, Thacher's of the 1,872 thus committed were dis- Criminal Cases, page 267, which arose charged, because those who had suf- in the old Municipal Court of Boston fered by their crimes would not appear in which Judge Peter Oxenbridge to give evidence upon their trial: in Thacher sat for twenty years from 1823 how many cases the witnesses who did to 1843. As stated in the preface to the appear withheld the evidence that they volume of his criminal cases published could have given; and how numerous after his death, he "was distinguished were the instances in which for his earnest study and thorough found a compassionate verdict, in direct knowledge of the criminal law and its contradiction to the plain facts clearly practical application." established before them, we do not This case is recorded in Volume XIX know; but that these evils must all of the Records of the old Municipal have existed to a considerable degree, Court of Boston, at page 199. As this no man can doubt." (Romilly's "Ob- opinion by Judge Thacher is the servations on the Criminal Law of earliest recorded judicial discussion of England," etc., pp. 10, 11.) the subject of probation in its modern sense known to the writer, and as the Judge Thacher volume of the "Law Reporter" in which The next recorded step in the develop- it was first published, and the subse- ment of the policy of fitting the punish- quent publication of "Thacher's Crim- FRANK W. GRINNELL

term of this court, 1830. She pleaded guilty to the same, and sentence would have been pronounced at that time, but upon the application of her friends, and with the consent of the attorney of the commonwealth, she was permitted, upon her recognizance for her appearance in this court whenever she should be called for, to go at large. It has some- times been practised in this court, in cases of peculiar interest, and in the hope that the party would avoid the commssion of any offense afterwards, to him on a recognizance of this description. The effect is, that no sentence will ever be pronounced against him, if he shall behave himself well afterwards, and avoid any further viola- tion of the law. But I cannot doubt the court may, on motion, have the party brought in and sentenced at any sub- sequent period. For what was the duty PETER OXENBRIDGE THAcHER of the court to do at any one time, can- inal Cases" are not always within not cease to be its duty by delay. The convenient reach, the entire opinion is judgment is postponed only, and it is in the discretion of the attorney for the here reprinted: commonwealth, to move at any time afterwards for the appearance of the MAY TERM, 1831 party, according to the condition of the COMMONWEALTH V. JERUSHA CHASE recognizance. The defendant was indicted at the In the case of Jerusha Chase, the de- January term of the court, 1830, for fendant, the question is not on the stealing from a dwelling house, and upon validity of the recognizance; but Whether her arraignment, pleaded guilty. The the former proceedings have discharged prosecuting officer did not move for her, §o that no further judgment can be sentence, and the indictment was laid on produced on the record. What are the file, the defendant entering into recog- rights of a party called into court under nizance with sureties to appear before such circumstances? He may admit the the court when sent for. At the present conviction, and plead a pardon for the term of the court, the defendant was in- offense; or, he may deny that he is the dicted for a larceny, and upon her trial, same person who is named in the indict- was acquitted. The county attorney then ment; in which case, the government moved for sentence upon the first men- must prove his identity, like any other tioned indictment. material fact, by verdict of the . Or, S. D. Parker, for the defendant, con- he may move in arrest of judgment for tended, 1. That the proceedings in the the insufficiency of the record. But this court at the January term were full and woman, upon being brought into court, complete; and that they amounted to a by another name, on being asked why sentence. 2. That the matter having she should not be sentenced on this been acted upon and finished, could not indictment, admitted her identity. It be brought forward per saltum, but appears, therefore, by the record, that should have been continued from term public justice has not been satisfied; and to term. that no punishment has been inflicted THAcHER, J. The indictment against for her violation of the law, in the matter Jerusha Chase was found at the January whereof she stands convicted. HISTORY OF PROBATION

But it is asked by her counsel, where The defendant was sentenced to five an indictment has been suffered to sleep days' solitary confinement and six upon the files of the court for several months in the house of correction. terms, and no notice has been taken of it on the record or docket to keep it The importance of this case is in- alive, whether it is competent to call it creased by a footnote on page 270 up at a future period, and to proceed which records that a petition for cer- upon it as on a living process? But I do tiorari was brought to reverse Judge not understand that a prosecution like this can ever be said to be dead in law. Thacher's decision; that upon a hearing If it should be said, however, to be hard of this appeal Chief Justice Lemuel measure to pronounce judgment after $haw delivered an opinion sustaining it has been suspended for years, I answer, that the party might at any time Judge Thacher, in which the other have appeared in court, and -demanded judges of the Court were understood the judgment of law. It has been de- to concur. These other judges were layed from tenderness and humanity, Samuel and not because it had ceased to be the Putnam, Samuel S. Wilde, and right of the government to claim the Marcus Morton. judgment. By mutual consent, therefore, A diligent search for any record of the judgment has been delayed till .this this time, and this consent takes away all opinion was unsuccessful, for error in the proceedings. 7 Sir Walter curiously enough, although the docket Raleigh was executed on a sentence of the case with the entry "petition dis- which had been passed upon him fifteen missed" is in the files of the clerk of years before. But he did not claim to be relieved from his fate on the ground of the Supreme Judicial Court for Suffolk the lapse of time between his judgment County, all the papers in the case are and the final demand of the warrant of missing. execution, but on the ground of an im- plied pardon, arising from a commission The petition for certiorari is noted which had been issued to him by the in the docket of the Supreme Judicial king, to command an expedition to a Court for Suffolk County at the No- foreign country, and in which was con- tained an authority over the lives of vember term, 1831, where it appears, others. 'It was argued, that such a com- on page 101, that S. D. Parker was for mission. could not have issued to one the petitioner, and the Solicitor Gen- dead in law, and that the grant of such a commission must have operated to eral for the Commonwealth. The entry restore the party to the privileges of a "Petn dismissed" is in handwriting free subject. Undoubtedly Sir Walter resembling that of Chief Justice Shaw. had hard measure dealt out to him by The original indictment his vain and weak sovereign. against Jerusha Chase was found at the Jan- By the record in this case, the de- fendant stands convicted of a crime, and uary term, 1830, and is endorsed: no sufficient reason is shown why the "Feb. 8. Defendant retracts her plea sentence should not follow the convic- and pleads guilty and recognized in the tion. It is as much the duty" of the court sum of two hundred dollars with Ben- to render judgment against a person jamin Salmon, trader, and Daniel Chase, convicted of a crime, and within its Cordwainer of Marblehead, to come power, as to secure to such person a when sent for and in the meantime to fair trial. It would be against reason keep the peace," etc. and justice to do otherwise. The case was also reported in 1839 - 3 Co. 40, Dormer's Case. in I. Law Reporter, 163 (Peleg W. FRANK W. GRINNELL

Chandler, editor), with a note that sentence on a boy for attempt to kill "the principles of the above decision by poisoning, Thacher, J., said: have often been recognized in Boston." "The object of all punishment, by a human tiibunal, is twofold-to act upon the offender and to bring him, if possi- ble, to a better mind; and to deter others by his sufferings from committing a like offence ... "I wish that I could impute it to acci- dent, to want of discretion, to anything rather than to malice; but not only the verdict of the jury; but the circum- stances of the case, convince me that the defendant perpetrated this deed with such deliberate malice that he is a suit- able object of punishment. "I have striven to find such circum- stances of mitigation as would authorize me to suspend the sentence, and to con- sent to send the defendant to the House of Reformation for Juvenile Offenders. But that house was not prepared for such an offender as this." "If he should be sent to that place it would not, I fear, be regarded by the community, and especially by the young, as a punishment. To send him home to his friends, without punishment, would be a great reflection on the justice of the JOHN AUGUSTUS law." The First ProbationOfficer This note was undoubtedly written Today we know that the backbone by Chandler, as this was the first num- of the probation system is a good pro- ber of the "Law Reporter" and he was bation officer and it is peculiarly fitting its first editor, and his statement is that the centennial anniversary of the reliable, for there were few members appearance of the first of such men, as of the bar of his day who knew better a public-spirited volunteer, in 1841, what they were talking about than should be celebrated this year in con- Peleg W. Chandler. nection with the annual conference of From the report of Com. v. Miller the National Probation Association in Snell, reported in "Columbian Cen- Boston on May 28-31. Judge Thacher's tinel," published in Boston, January practice was in a jury court with juris- 14, 1832, it appears that, when passing diction of all criminal cases not capital.

8 The House of Refuge instituted by the So- be found in the Boston Athenaeum. Following ciety for the Reformation of Juvenile Delinquents this experiment, the House of Reformation for in the City of New York in 1824 was "the first Juvenile Offenders was established (St. 1825-26, of the kind in the United States by which the ch. 182). This was the institution referred to in experiment of juvenile reformation the quotation from Judge Thacher, quoted above, was fairly from the "Columbian Centinel." An account of attempted." The documents relating to its early this institution was published in pamphlet form history were published together in a volume for in 1833. For earlier treatment of juveniles see general information in 183Z a copy of which may St. 1787, c. 54; 1793, c. 59. HISTORY OF PROBATION

The Boston Police Court was a separate day had followed the work of Beccaria, tribunal. Obviously following up the Bentham, and Romilly, and that prob- precedents established by Judge Tha- lems of criminal administration were cher, agitating men's minds on both sides of "John Augustus, humble New England the Atlantic. shoemaker, a spectator in the Boston Police Court in 1841, asked the judge In this, as in many other matters to let him stand sponsor for a man whose relating to modem government, Mon- conduct ordinarily would have consigned tesquieu was in the background. He him to the House of Correction. Ac- cording to authentic records, this little devotes a few short chapters in his known social pioneer carried out con- "Spirit of Laws" to the subject of pun- tinuously for the remaining eighteen ishment. A copy of the sixth Edinburgh years of his life a system of probation supervision for more than two thousand edition of an English translation pub- offenders, young and old. His pioneer lished in 1772, was presented to the work embodied all the essentials of Boston Athenmum in January, 1810, modern probation service." and it may be safely assumed that this The Sources of Judge Thacher's or some other edition was read by Practice Thacher and all other careful students It is idle to imagine that Judge of government of that day in this Thacher's practice was the accidental neighborhood. result of the benevolent impulses of a The following quotation is a sample single judge and had no roots in the of the views expressed by Montesquieu: history of the law. Peter Oxenbridge "Men must not be led by excess of Thacher was one of the thoughtful men violence; we ought to make a prudent use of the profession in his day. He began of the means which nature has given u's his twenty years of service on the crim- to conduct them. If we enquire into the cause of all human corruptions, we shall inal bench in the old Municipal Court find that they proceed from the impun- of Boston, in 1820, in the midst of the ity of crimes, and not from the modera- "Era of Good Feeling," when James tion of punishments. Monroe was President of the United- "Let us follow nature, who has given States. The nation was at peace, the shame to man for his scourge, and let general framework of its government the heaviest part of the punishment be had been tested by time and struggle, the infamy attending it." (Vol. 1, book 6, chap. 12.) and men were able to read and think more widely and to consider the details In reading and reflecting upon the of government. If any one will work of these men, as in reflecting on spend half an hour with the index to the work of other men who were con- the first twenty-five volumes 6f the nected with the beginnings of the "North American Review" and look up American nation, it is important to the passages under the headings of remember that they were inspired by "Crime," "Punishment," "Romilly," practical and dramatic conditions of "Bentham," etc., he will see that the cruelty and injustice, of which the thoughtful and far-sighted men of that ordinary American citizens of today, FRANK W. GRINNELL

up to the beginning of the present Adams quoted from it in his argument European war, had no conception.* to the jury in defence of the British The present war is bringing men soldiers who were tried for murder back to the realization that we are after the Boston Massacre. living in the same old world, and that In Romilly's diary, under the date the barbarous tendencies of human of August 20, 1808, appears the follow- nature are not so securely held back ing passage relative to Bentham's by the restraints of civilized character treatise on punishments: as many people suppose. This fact "Since the work of Beccaria, nothing makes the sane and scientific humane has appeared on the subject of the study of criminal administration and Criminal Law which has made any im- pression on the public. This work will, the penal system of primary importance I think, probably make a very deep in a democracy as a matter of legal and impression." ("Life of Romilly," Vol. 2, equitable principle, in order that the p. 94.) encouragement of the best instincts of A casual reading of Romilly's speech prisoners toward the restraints of char- in 1810, in favor of the repeal of stat- acter, as well as the importance of a utes making minor thefts capital firm and fair administration of punish- offences, will give a more vivid idea of ment adapted to the circumstances, the facts of practice during the previous may receive due, but not excessive con- century than such text-books as Black- sideration. It is necessary to face the stone and others, and it there appears practical problem described by Mon- that judges had and exercised the dis- tesquieu when he said: cretion to mitigate the death penalty "There are two sorts of corruption: in many of these-cases. It was against one, when the people do not observe the the severity of the penalties and the laws: the other, when they are corrupted by the laws, an incurable evil, because irregularity in regard to the mitigation it is in the very remedy itself." (Vol. 1, of them that Romilly fought in favor book 6, chap. 12.) of saner principles. The reformatory Beccaria, building, as he said in his idea had not taken definite shape in introduction, on a foundation laid by 1810, even for juvenile offenders, al- Montesquieu, who "has but slightly though it had been suggested by Sir touched on this subject," laid a basis John Fielding.* But that the minds of for future development in his "Essay men were approaching the theory of on Crimes and Punishments." probation as a judicial function is Beccaria's book was translated into shown by passages scattered through French by Molleret, and widely dis- Bentham's work on "Punishments" and tributed in France. It was later trans- by passages in a letter written to Rom- lated into English and three editions illy by Dr. Parr in 1811, and printed in of it had been printed before 1775, a footnote in Romilly's Life, Vol. 2, pp. when the fourth edition appeared. John 180, 182. Romilly's own mind was ap-

* Cf. Journal of Criminal Law and Crini- * See A. B. A. Journal for Sept. 1940, pp. nology for Sept.-Oct._ pp. 259-269 and Nov.- 725-730. Dec. 1940, pp. 410-416. HISTORY OF PROBATION proaching it, as shown by the entry in The unanimous opinion of the court his diary for Sunday, May 21, 1811: was delivered by Chief Justice Gray "Penal legislation hitherto has resem- on this point as follows: bled what the science of physics must "It has long been a common practice have been when physicians did not know in this Commonwealth, after verdict of the properties and effects of the medi- guilty in a criminal case, when the Court cines they administered." ("Life of is satisfied that . . . public justice does Romilly," Vol. 2, p. 198.) not require an immediate sentence, to Judge Thacher was familiar with order, with the consent of the defendant for the Common- these ideas and when he went on the and of the attorney wealth, and upon such terms as the bench he began to apply them. That Court in its discretion may impose, that appears to be the beginning of proba- the indictment be laid on file; and this tion in Massachusetts. practice has been recognized by statute (Sts. 1865, c. 223; 1869, c. 415, §60). Such In 1874, forty-four years after Judge an order is not equivalent to a final Thacher's opinion in the Chase case, judgment or to a nolle prosequi or dis- continuance, by which the case is put the same question whether the laying out of court; but is a mere suspending of a case on file was the final disposi- of active proceedings in the case . . . tion of it, or whether the defendant and leaves it within the power of the could be summoned into court subse- Court at any time, upon the motion of either party, to bring the case forward quently for the imposition of sentence and pass any lawful order or judgment arose again in Coin: v. Dowdican's therein. Neither the order laying the Bail, 115 Mass. 133. Hon. Charles R. indictment on file, .nor the payment of costs, therefore, in any of the four cases, Train, a man of large experience, was entitled the defendant to be finally then Attorney General, and appeared discharged." for the commonwealth in asking for The two statutes* referred to by sentence, and his brief contained the Chief Justice Gray do not appear to following statement: have been considered as creating the "It has been a not uncommon practice power as to cases in general, but sim- in the Criminal Courts in this Common- the exercise of general wealth, after verdict, in minor offences, ply regulated or where there were extenuating cir- power in specific cases. cumstances, or where questions of law The practice of placing defendants upon similar questions were pending on probation, instead of sentencing before this or some other court, to delay passing sentence, and order the case to them, continued to be followed in be laid on file. It has always been con- the various courts administering the sidered that the effect of such an order criminal law, so far as it was prac- was simply to suspend passing of sen- tence, leaving it in the power of the court ticable in the absence of any regu- at any time, when the reasons which lar force of probation officers or induced the delay no longer existed, to available funds to meet the expenses take the case from the files and have it was proceed to judgment. The defendant in of such a system. This practice all cases where sentence was thus de- followed in the state courts down to layed on account of extenuating circum- the time when the statutory system put on his good behavior stances was was established in the Municipal Courts. and under bonds, as it were, to live honestly." It was thus through judicial experi- FRANK W. GRINNELL

ment, which was evidently believed to was chapter 356 of 1891, which carried be within the common law powers of the service to all the lower courts and Massachusetts judges, that the prin- changed the appointment from a ciple of probation was applied experi- municipal appointment to a judicial mentally in practice until, as a result appointment, so that the probation of gradually forming public opinion, the officer was in every way an officer of practice became so generally approved the Court. In 1898, by chapter 511, the that the legislature took it up and pro- provisions of the act of 1891 were vided for its development on a broader extended from the lower court by giv- scale than was otherwise possible and ing the Superior Court the power to from Massachusetts the system spread appoint officers, although not com- all over the country. pelling them to do so. The Beginning of the Statutory The important fact to bear in mind System in regard to the acts of 1878 and- other acts relating to the lower courts and In 1878 the Massachusetts legislature the act of 1898 relative to the Superior passed an act (chapter 198 of that Court is that the obvious purpose of year) "relating to placing on probation these acts was not the creation of a persons accused or convicted of crimes new judicial power, but the provision or in the County of for the appointment and payment of Suffolk." This act provided that the special officers to assist the court .in Mayor of Boston should annually ap- the exercise of a well-established and point a probation officer as part of the well-recognized and approved existing police force, and is reputed to be the usage, the nature of which was such first act by any legislative body using that it could not be exercised to its full the word "probation" in the sense of extent and with best results by the placing persons convicted of crime in court without special assistance and the care of an official before being sent appropriation of funds to aid the court to an institution. It is the pioneer by the investigation of facts. probation act in the modem sense, It should be noticed also that these although, as already pointed out, there statutes were adjusted to the prior was also the earlier statute recom- judicial usage of placing on probation mended by the commissioners on the before sentence. Revised Statutes of 1835, which did not The change in the practice, which is provide a special officer to supervise now general under statutory systems the prisoner. The next statute was in the country, began in Massachusetts chapter 129 of 1880, which extended the by chapter 449 of 1900, which provided right to appoint probation officers to that the lower courts might first impose all the cities and towns in the state. sentence and then "direct that the Under this act some cities provided execution of the sentence be suspended themselves with such officers, but the for such time and on such terms and number was not large. The next statute conditions as it shall fix and may place HISTORY OF PROBATION such person on probation in the custody respect was approved by Chief Justice of the probation officer of said court Shaw and Judges Putnam, Wilde and during such suspension." This power Marcus Morton (the first), one of the of suspending the execution of a sen- strongest common law courts that ever tence, however, has never been ex- sat in Massachusetts. Unfortunately tended to the Superior Court, which there is no record of the grounds of the acts only before sentence in probation opinion, but the fact that they did not cases. disturb Judge Thacher's practice is It is true that the Supreme Court of clear, and it also seems clear from the United States in the Killits case papers in the possession of the writer disposes of the long established practice that Mr. Justice Story, who certainly in Massachusetts, as evidence of the knew something about common law common law, by the statement that the principles, received, on its publication opinion in the case of Dowdican's Bail in 1839, and read the first number of "treated the power as being brought the "Law Reporter," containing the re- by the state legislation, which was re- port of the Chase case, which had been ferred to within the domain of reason- decided eight years previous. If the able discretion, since by the effect of practice thus reported and confirmed that legislation the right to exert such had appeared extraordinary or illegal power, if not directly authorized, was to the bar at that time it seems incon- at least, by essential implication sanc- ceivable that there should not have tioned by the state law." It is also true been some discussion of the subject, for that the power which was recognized it was a time when lawyers were be- as general in the statutes, referred to ginning to write freely, and the "North in the opinion in the case of Dowdican's American Review," the "American Jur- Bail, was expressly recognized in the ist," and the "Law Reporter" provided earlier statute already referred to, Sec- ample opportunity for such discussion. tion 9 of Chapter 143 of the Revised Other Common Law Examples Statutes of 1836. But the fact remains It is a common law principle that the that the probation practice of the courts judicial function of the Court is not ex- does not appear to have been limited hausted until the entry of judgment, offences with which this Section to the which, in a criminal case, is the impo- 9 of 1836 was concerned, and it is clear sition of the sentence. In Burgess v. that the power was considered by Boetefeur, 7 Man. & Gr. 481 (1844), the Judge Thacher, an experienced crim- plaintiff had informed against one inal judge, as an inherent power in the Mitchell and others for keeping a bad Court which he ought to exercise in house, and sued the Overseers of the the interests of justice when the cir- Poor for the statutory amount due him cumstances warranted it, long before for securing conviction. It appeared the Revised Statutes of 1836 were that indictments were prepared against adopted, and that his view of the prac- Mitchell and others and they severally tice and function of the Court in this pleaded guilty in October, 1842. FRANK W. GRINNELL

"The judgment was respited that the eral approval suggested by Mr. Justice' nuisances might in the meantime be Lamar in United States v. Midwest Oil abated; and this having been done, the parties were afterwards (in June, 1843) Co., "236 U.S., at 472, when he said: brought up for judgment, when they "Government is a practical affair in- were each fined Is. and discharged." tended for practical men. Both officers, (See page 484.) law makers, and citizens naturally Meanwhile the overseers were adjust themselves to any long continued changed, and the question was: Which action.., on the presumption that un- overseers were liable for the money? authorized acts would not have been Held, by Tindal, C. J., Coltman & allowed to be so oft6n repeated as to Cresswell, JJ., that the conviction was crystallize into a regular practice," and not complete till judgment entered in "this principle is recognized in every June, 1843, so that the later overseers jurisdiction." It illustrates in a very were held liable. striking way the actual discretionary Until 14 Henry VI., c. 1, Justices of control of the application of mandatory Assize could only receive the verdict. criminal punishments, which has always It was for the Court in Bane to give been needed and exercised by the sentence. prosecuting officers and the courts, no Chitty, Cr. Law (2d ed.), Vol. I., 696, matter how serious the crime or how 697. mandatory the language of the statute At one time an ingenious device for imposing the punishment. The subject getting highways repaired seems to has not been very frequently discussed have depended on a discretionary in the reports, but the law is clear. power to suspend sentence, for after Space will not permit extended dis- verdict of , and before judg- cussion here. The leading historical ment thereon, they used to try the issue exposition of it is that of Lord Mans- again in another indictment. field, in 1775, in Rex v. Rudd, 1 Cow- Rex v. Wandsworth, 1 B. & Ald. 63. per, 331, which forms the basis of the The Old Law of "Approvement" and opinion of Judge Clifford in the "Whis- Its Modern Development as Illustrating key Cases," 109 U. S., the leading the ProbationPrinciple American case. These cases are dis- cussed at length in the earlier and more Another illustration of the Common extended edition of this paper in 1917 Law Principle from which probation referred to at the outset. practice developed is the practice in re- It is safe to say, therefore, that the gard to prisoners who turn state's evidence. modern humane practice of probation The common law of "approvement" was developed in Massachusetts by and its modern developments are not judges as a natural part of the business the result of legislative authority-they of administering justice, in the same are the results of the application of a manner that the rules of evidence de- principle in practice and of executive veloped in the common law courts, and acquiescence and of that force of gen- equitable remedies developed in the HISTORY OF PROBATION

English Chancery Courts by the grad- Federal Courts-it did not affect the ual application of principles demanded common law powers of judges in those by the interests of justice in a growing states in which these powers had been community. And if the courts had not recognized, as in Massachusetts, for the shown this liberal spirit the legislative greater part of a century. The situa- recognition and provision for the nec- tion emphasizes, in an interesting way, essary officers and funds to extend and the fundamental importance of our dual develop the probation system through- system of government, which provides out the country would have been far us with forty-eight state laboratories behind its present stage. of the common law of America. It also Probably one reason for the mass of suggests the importance of caution in conflicting opinion in other jurisdictions regard to recurrent epidemics of the was the failure of the courts in Ohio codification fever and tendencies to and elsewhere to recognize the logical overdo the work of uniform legislation, point in 1rocedure at which this discre- particularly in the field of adjective tionary power of the courts could be law. Law cannot develop to meet properly exercised without statutory all the needs of a community solely authority. Instead of following the through legislation, whether uniform or Massachusetts practice of acting before not. Judicial advance by competent sentence these courts exhausted their judges within the field of judicial prin- power by imposing sentence, and then ciples is absolutely essential to gradual tried to suspend its execution, which healthy improvement in the administra- was beyond the judicial function until tion of justice. This is a fact which extended by statute. This naturally must be recognized. The whole history caused a confusion of ideas and author- of the common law and of equity juris- ities from which the shortest avenue of diction proves it. The ability to develop escape was a decision-which made an law through the grasp of principles and to secure uni- act of Congress necessary the translation of them into practical form federal practice. application has been the distinguishing However that may be, the situation mark of great judges. calls for reflection. The late John C. The intellectual pioneer work of Gray, in his book on "The Nature and judges in the field of justice usually Sources of the Law," has pointed out must precede (what may in time be- that come desirable) legislative regulation "It is a matter of prime importance and extension, as for example, in this to observe that . . . the development of the law has been mainly due neither matter of probation. In this country to the legislature on the one hand nor this judicial pioneer work must be to the people on the other, but to learned men, whether occupying or not judicial mainly done by judges in the state positions." courts with the constantly increasing The opinion in the Killits Case, of assistance of the jurists whom our law course, explained the law only for the schools are developing. FRANK W. GRINNELL

The broad perspective was expressed has shown that the filling up of jails in- by Mr. Justice Matthews in Hurtado discriminately under this arbitrary test v. California, 110 U.S., at 531, as is not now a protection to society, but follows: has become a positive menace by mak- "As it was the characteristic principle ing many prisons mere schools of crime. of the common law to draw its inspira- Accordingly the basis of the probation tion from every fountain of justice, we system is, not "to relieve from punish- are not to assume that the sources of its supply have been exhausted. On the ment because of alleged virtues," but contrary, we should expect that the new in those cases where an examination of and various experiences of our own sit- the facts of the case warrant sufficient uation and system will mould and shape it into new and not less useful forms." hope for improvement, to deal with the individual in such a way as to make The Punitive Theory of Justice. the best of that hope, on the ground It has been said that the power to that he is more likely to be a future require security for good behavior was menace to society if he is punished than a punitive measure mainly for the pur- if he is given an opportunity under pose of keeping peace because, of con- supervision to improve without being tinued dangerous impulses of the con- released from the jurisdiction of the victed person, while the probation prac- Court and the possibility of punishment tice "relieves of punishment .. be- if the probation experiment does not cause of the alleged virtues of the de- succeed. fendant." A similar arbitrary explana- It is always easy, and sometimes tion might plausibly be made of all the fair, to ridicule certain phases of the other expedients of harsher genera- practical application of principles by tions discussed in this article. But the the courts. In the earlier periods of idea that the common law principle of the growth of equity jurisdiction it was administration of criminal justice was common to ridicule it by saying that it exclusively a punitive principle does varied with the length of the chancel- not seem tenable in view of the evi- lor's foot. In the same way this or that dence to the contrary. Nor is the idea variety of practice or occasional appli- that probation is based upon "the al- cation -of the probation principle may leged virtues" of the defendant tenable deserve ridicule and get it. It is not either. The real basis and justification the intention in this article to minimize of probation as a judicial question is in any way the serious consequences that in many ways the common, abso- which may result if the temptation to lute, punitive notion that justice can be be excessively benevolent or good- successfully administered in advance natured or even to consider political by wholesale, by the mandatory im- circumstances is yielded to. position of arbitrary penalties to be ap- Probation as a judicial function is not plied without discrimination in every a "capricious" or "arbitrary" jurisdic- case falling within a certain defined tion and the fact that it may be ad- class, has broken down, and experience ministered occasionally by a judge who HISTORY OF PROBATION may have "capricious" or "arbitrary," the nature of the judicial power de- or excesively benevolent pecularities manded by the changing conditions of does not alter the essential nature of life in a great republic. As Mr. Justice the jurisdiction as one that is based Holmes has said: "Law, being a prac- upon equitable principles which will tical thing, must found itself on actual grow more distinct as time goes on. forces."

The Scope of the Opinion We are not concerned with varying definitions of the word "jurisdiction." in the Killits Case The three great divisions marked by Did the opinion of Chief Justice Articles I., II., and III. of the Federal White in the Killits case mean that the Constitution are "legislative powers," Supreme Court of the United States "the executive power," and "the judi- intended to suggest a line between the cial power." The word "jurisdiction" fields of civil and criminal administra- occurs in a different sense in later parts tive law, so far as the legal possibilities of Artcile III. It has no bearing upon of judicial, as distinguished from legis- the nature of the judicial power lative development, of principles are involved. concerned? It is difficult to believe this. The fundamental purpose of the exis- It seems that the opinion should be tence, as well as of the exercise, of accepted rather as a- mistaken but "judicial power" is the administration practical short cut out of an unfor- of justice "by judges as free, impartial tunate confusion of authorities and that and independent as the lot of humanity it should not be 'treated as having will admit." (Mass. Const., Art. broader application.* XXIX.) This may be worth demonstrating This carefully expressed distinction more fully by an examination of the between the words "judicial power" extent of the judicial power of the Fed- and "jurisdiction" is not only obvious, eral Courts in connection with any but was expressly pointed out by the future rules of al- Court in Kendall v. U. S. 12 Pet. ready referred to. The distinction was respected in the The "JudicialPower" of the judiciary act and in the new Judicial Federal Courts Code, which in Section 24 provides A study of the nature of the "judicial that- "The district Courts shall have power" provided for in the third article orig- inal jurisdiction as follows: . . . of the Federal Constitution and con- Second, Of all crimes and offenses ferred by Acts of Congress, upon "the cognizable under the authority of the inferior federal courts established by United States." Congress" must begin, not with law This language is substantially taken dictionaries or a mass of inconsistent directly from the old judiciary act as to authorities, but with a consideration of the district and circuit courts (see R.S., Sections 563, 1st, and 629, 20th). It has * Cf. 24 American Judicature Society Journal at pp. 155-6 (Feb. 1941). been in force for more than a century FRANK W. GRINNELL and it is very significant that there is oath provided for judges in the same no reference whatever to the words Act, i.e., "to administer justice." "judicial power" in these statutory This administrative feature of the grants of "jurisdiction." Why is this? judicial system was largely ignored in Is it not because all the necessary various directions in recent years as "power" needed to exercise any speci- the result of a mechanical atmosphere fied jurisdiction was already expressly in the profession, which Dean Pound provided by the Constitution, and all and others have done so much to re- that was needed was that Congress move by the movement "for the ad- should give it direction by the brief justment of principles and doctrines to sentences above quoted without un- the human conditions they are to necessary repetition? govern, rather than to assumed first There was no accident about this use principles; for putting the human fac- of words. Some of our forefathers were tor in the central place and relegating more careful and more sparing in the logic to its true position as an instru- use of words than modern legislative ment." (8 "Columbia Law Review," at draftsmen, who consider it necessary pages 609 and 610.) to use seventeen words when one or The three words, "to administer jus- two would suffice. tice," when properly understood seem to include all the essential principles of Accordingly, the Constitution and the common law through which prac- the code construed together give the tice may be adapted to the changing district courts all the "judicial power" conditions of modern life. There is needed to perform completely the ju- room in those three words for all the dicial function in the exercise of the imagination that the profession can put "original jurisdiction . . . of all crimes into them, and if the common law is and offenses cognizable," etc. There are studied sympathetically in the light of no legislative limitations imposed. The the human conditions out of which it judicial function should surely be con- grew, we may hope to hear more ap- strued in its broadest sense to meet preciative words spoken of its esential the demands of criminal administration principles by some of our modern in a great nation. And the funda- philosophers, who wish to reduce it all mental purpose, in the light of which to the dead level of statutory this transfer of power is to be liberally mediocrity. (See note in this number construed, is specified in the statutory at p. 92 f.-Ed.)