Another point deserves notice. Cases involving large mercantile or shipping transactions often arise. “Such cases cannot be submitted to ordinary juries with the prospect of correct or even intelligent verdicts. To continue to require that such cases, involving questions not only of intricacy and complication, but of a nature which lies outside the experience and observation of most men, and dependent for correct solution and decision, not on principles of common-sense or common experience, but on the result of minute, varied, complicated, and involved sets or series of transactions, to be viewed not in general or loosely, but with strict reference to details, and with knowledge and appreciation of most difficult and technical questions and rules of commerce and business, — transactions, too, extending often over many years and through many changes in the personnel of the actors, — to require such cases, I say, to be submitted to ordinary juries is plainly, in my judgment, to submit to chance and accident what should pass under the scrutiny of minds fitted by some previous training or experience to treat them with intelligence. The legislation, statutory or constitutional, which shall aim to effect the change here contemplated, should, however, be most carefully guarded in its description of the excepted cases, in order not, under the guise of this reform, to narrow in other respects, to the smallest extent, the province of jury trials in the full scope which they have hitherto been given in our jurisprudence.”
Among other comments called forth by the recent trial of the Anarchists was one to the effect that an acceptance of the pardon by the convicted person was necessary to its validity. This seems to be the law. In the case of U. S. v. Wilson,[1] in the words of Chief-Justice Marshall, “A pardon is a deed, to the validity of which delivery is essential, and delivery is not complete without acceptance. It may then be rejected by the person to whom it is tendered, and if it be rejected, we have discovered no power in a court to force it upon him. It may be supposed that no being condemned to death would reject a pardon; but the rule must be the same in capital cases and in misdemeanors. A pardon may be conditional, and the condition may be more objectionable than the punishment inflicted by the judgment.” This statement of the law applies to the case of pardons by the executive. If the pardon is by act of the Legislature, “the Court shall give him the benefit of the act, though he waives or refuses it.”[2] This is on the ground that “it is considered as a public law, having the same effect on the case as if the general law punishing the offence had been repealed or annulled.”[3]
If the convicted person refused the pardon and insisted on the fulfilment of the sentence the situation would be embarrassing. It is hard to conceive of any remedy he would have against the government. The only practical question that could arise would be his capacity as a witness,[4] as the pardon would not be valid. A field of theory is open. For example, would an acceptance of the pardon as the relinquishment of a legal right form a good consideration in a contract?
The report comes from Iowa of a non-partisan movement in that State to secure the establishment by the new Legislature of what are called “Courts of Conciliation.” A description of these courts is given in “The Nation,” of November 24.[5]
