And we can deduce no support for the contrary contention from the rulings in 2 Dyer, 165a, 205a and 235a, since those cases but illustrate the exercise of the conceded, reasonable, discretionary power to reprieve to enable a lawful end to be attained. Nor from the fact that common law courts possessed the power by recognizances to secure good behavior, that is, to enforce the law, do we think any support is afforded for the proposition that those courts possessed the arbitrary discretion to permanently decline to enforce the law. The cases of Rex v. Hart, 30 How. State Trials, 1344, and Regina v. Dunn, 12 Q. B. 1026, 1041, certainly do not tend to so establish, since they simply manifest the exertion of the power of the courts after a conviction and the suffering of the legal penalty to exact from the convicted person a bond for his good behavior thereafter.

3. The support for the power asserted claimed to be derived from the adjudication of state and federal courts.

Coming first to the state courts, undoubtedly there is conflict in the decisions. The area, however, of conflict will be narrowed by briefly stating and contrasting the cases. We shall do so by referring chronologically to the cases denying the power, and then to those relied upon to establish it.

In 1838 the Supreme Court of North Carolina in State v. Bennett, 4 Dev. & Battle's Law, 43, was called upon to decide whether a trial court had the right to permanently remit upon condition a part of a criminal sentence fixed by statute. The court said:

"We know that a practice has prevailed to some extent of inflicting fines with the provision that they should be diminished or remitted altogether upon matter thereafter to be done, or shown to the Court by the person convicted. But we can find no authority in law for this practice, and feel ourselves bound, upon this first occasion when it is brought judicially to our notice, to declare it illegal."

Opinion of the Court.

242 U. S.

In 1860 in People v. Morrisette, 20 How. Pr. 118, an accused after pleading guilty asked a suspension of sentence and to be then discharged from custody. The court said:

"I am of the opinion the court does not possess the power to suspend sentence indefinitely in any case. As I understand the law, it is the duty of the court, unless application be made for a new trial, or a motion in arrest of judgment be made for some defect in the indictment, to pronounce judgment upon every prisoner convicted of crime by a jury, or who pleads guilty. An indefinite suspension of the sentence prescribed by law is a quasi pardon, provided the prisoner be discharged from imprisonment. No court in the state has any pardoning power. That power is vested exclusively in the governor.

In People v. Brown, 54 Michigan, 15, in deciding that no power to permanently suspend a sentence existed, speaking through Mr. Chief Justice Cooley, the court said:

"Now it is no doubt competent for a criminal court, after conviction, to stay for a time its sentence; and many good reasons may be suggested for doing so; such as to give opportunity for a motion for a new trial or in arrest, or to enable the judge to better satisfy his own mind what the punishment ought to be: Commonwealth v. Dowdican's Bail, 115 Mass. 133; but it was not a suspension of judgment of this sort that was requested or desired in this case; it was not a mere postponement; it was not delay for any purpose of better advising the judicial mind what ought to be done; but it was an entire and absolute remission of all penalty and the excusing of all guilt. In other words, what was requested of the judge was that he should take advantage of the fact that he alone was empowered to pass sentence, and, by postponing indefinitely the performance of this duty indirectly but to complete effect grant to the respondent a pardon for his crime."

And, considering the doctrine as to the want of power

thus expounded from the point of view of the common law and of every argument here relied upon, state courts have in the cases which are in the margin in careful opinions denied the existence of the power now claimed.1

The cases to the contrary are these, omitting one in a court of original jurisdiction in Massachusetts referred to by counsel but in which there is no written opinion:

In 1874 in Commonwealth v. Dowdican's Bail, 115 Massachusetts, 133, the right in a criminal case "to lay the case on file" and postpone the sentence was sustained, the court declaring that the practice had long existed, and was recognized by statutes one of which regulated the granting of parole by courts in liquor cases.

1 People v. Kennedy, 58 Mich. 372 (1885); Gray v. State, 107 Ind. 177 (1886); People v. Blackburn, 6 Utah, 347 (1890); State v. Voss, 80 Ia. 467 (1890); People ex rel. Benton v. Court, 8 N. Y. Crim. Rep. 355 (1892), affirmed in 66 Hun, 550 (1893); In re Strickler, 51 Kans. 700 (1893); People ex rel. Smith v. Allen, 155 Ill. 61 (1895); In re Markuson, 5 N. Dak. 180 (1895); In re Webb, 89 Wis. 354 (1895); United States v. Folsom, 8 N. Mex. 651 (1896); State v. Murphy, 23 Nev. 390 (1897); Neal v. State, 104 Ga. 509 (1898); Hawaii v. Pedro, 11 Haw. 287 (1898); In re Beck, 63 Kans. 57 (1901); Miller v. Evans, 115 Ia. 101 (1901); People v. Barrett, 202 Ill. 287 (1903); In re Flint, 25 Utah, 338 (1903); State v. Dalton, 109 Tenn. 544 (1902); Grundel v. People, 33 Colo. 191 (1905); Tuttle v. Lang, 100 Me. 123 (1905); McCampbell v. State, 116 Tenn. 98 (1905); Ex parte St. Hilaire, 101 Me. 522 (1906); Tanner v. Wiggins, 54 Fla. 203 (1907); State v. Hockett, 129 Mo. App. 639 (1908); Ex parte Clendenning, 22 Okla. 108 (1908); Ex parte Cornwall, 223 Mo. 259 (1909); Wall v. Jones, 135 Ga. 425 (1910); State v. Smith, 173 Ind. 388 (1910); State ex rel. Cary v. Langum, 112 Minn. 121 (1910); Ex parte Peterson, 19 Ida. 433 (1911); State v. Abbott, 87 S. Car. 466 (1911); Spencer v. State, 125 Tenn. 64 (1911); State v. Sapp, 87 Kans. 740 (1912); Daniel v. Persons, 137 Ga. 826 (1912); State v. Sturgis, 110 Me. 96 (1912); State v. Talberth, 109 Me. 575 (1912); Fuller v. State, 100 Miss. 811 (1911); Ex parte Bugg, 163 Mo. App. 44 (1912); Snodgrass v. State, 150 S. W. (Texas) 162 (1912); Roberts v. Wansley, 137 Ga. 439 (1912); Hancock v. Rogers, 140 Ga. 688 (1913); Brabandt v. Commonwealth, 157 Ky. 130 (1914); Ex parte Hart, 29 N, Dak, 38 (1914); Reese v. Olsen, 44 Utah, 318 (1914),

Opinion of the Court.

242 U.S.

The case just cited was approvingly referred to in Sylvester v. State, 65 N. H. 193, and declared to express the practice long prevailing in New Hampshire.

In 1894, in People ex rel. Forsyth v. Court of Sessions, 141 N. Y. 288, in holding that a trial court had power to permanently suspend a sentence for reasons dehors the legality of the conviction, it was declared that such power existed at common law and hence prevailed in the State, this being supported by a quotation from Hale's Pleas of the Crown. In addition it was said, referring to a state parole statute enacted subsequent to the conviction, that such statute, while it conferred no new or other power than that possessed at common law, nevertheless imposed the duty to see to it that the power was not lost to impose future punishment after the release if the condition of suspension was violated.

In the cases cited in the margin the power was upheld upon the rulings in Commonwealth v. Dowdican's Bail, supra, and the Forsythe Case, supra, or because of a practice long prevailing.1

Leaving aside the question of the asserted duty to sustain the doctrine because of the long established prac

1 State v. Addy, 43 N. J. L. 113 (1881); People v. Mueller, 15 Chicago Legal News, 364 (1883); Commonwealth v. Maloney, 145 Mass. 205 (1887); Ex parte Williams, 26 Fla. 310 (1890); State v. Crook, 115 N. Car. 760 (1894); State v. Whitt, 117 N. Car. 804 (1895); People ex rel. Dunnigan v. Webster, 14 Misc. (N. Y.) 617 (1895); Weber v. State, 58 Ohio St. 616 (1898); Shaefer v. Ohio, 7 Ohio Cir. Ct. (N. S.) 292 (1905); In re Clara Lee, 3 Ohio N. P. (N. S.) 533 (1905); State v. Hilton, 151 N. Car. 687 (1909); State v. Drew, 75 N. H. 402 (1909); State v. Drew, 75 N. H. 604 (1910); Ex parte Hinson, 156 N. Car. 250 (1911); Gehrmann v. Osborne, Warden, 79 N. J. Eq. 430 (1911); People v. Goodrich, 149 N. Y. Supp. 406 (1914); State v. Tripp, 168 N. Car. 150 (1914); State v. Johnson, 169 N. Car. 311 (1915). See Green v. State, 88 Ark. 290 (1908); Joiner v. State, 94 Ark. 198 (1910); People v. Patrich, 118 Cal. 332 (1897); Commonwealth v. Nuber, 6 Pa. Super. Ct. Rep. 420 (1898); Commonwealth v. Dunleavy, 16 Pa. Super. Ct. Rep. 380 (1901).

242 U. S.

Opinion of the Court.

tice, which we shall hereafter consider, we think it clear that the long and settled line of authority to which we have previously referred denying the existence of the power is in no way weakened by the rulings which lie at the basis of the cases relied upon to the contrary. In the first place, on the face of the opinion in Commonwealth v. Dowdican's Bail, supra, it would seem certain that that case treated the power as being brought by the state legislation which was referred to within the domain of reasonable discretion, since by the effect of that legislation the right to exert such power, if not directly authorized, was at least by essential implication sanctioned by the state law. In the second place, in so far as the Forsyth Case, supra, is concerned and its declaration as to what was the common law upon the subject, the error thus fallen into is not only demonstrated by what we have said as to the common law, but is additionally shown by the fact that the quotation from Hale's Pleas of the Crown made in the opinion contains clauses supporting the opinion expressed as to the common law when in fact the clauses in question, it would seem, were by some error of citation mistakenly attributed to Hale. We say this because the clauses referred to and attributed to Hale in the quotation are not found in any edition of the Pleas of the Crown which we have been able to examine, and it is stated by counsel for the United States that after diligent search no passage containing the clauses has been discovered, and the existence of any edition of the work containing them is not pointed out by opposing counsel. But whether this be well founded or not, as the conclusion concerning the common law which the case expressed is we think obviously unsound, we are unable on the authority of such a mistaken view to disregard the long established and sound rule laid down in the many state cases which we have quoted.

So far as the courts of the United States are concerned,