The number of convicts has rapidly increased during the last two years. At the commencement of the fiscal year 1865, the number was 292, which continued to decrease-as it had done since January, 1861, when the number was 630-until in May, 1865, there were only 262 convicts, being the lowest point reached. From this period commenced a rapid increase, until

the 30th of November, 1866, there were 502 convicts in the prison, being an increase of 240 in about eighteen months; equal to nearly one every other day.

A disastrous fire occurred on the night of the 15th June, 1865, by which the whole line of work-shops, on the west side of the prison-yard, was destroyed. This was indeed a serious calamity; and, not having been anticipated, no legislative provision had been made to meet it. As the interests of the State and the well-being of the prison required that these shops should be re-built at the earliest practicable moment, a personal consultation was had with the Board of Inspectors, and after mature consideration, it was deemed advisable to proceed without delay, to re-build the work shops, notwithstanding no provision had been made for such an emergency.

From these causes mainly has arisen the increase in the amount drawn from the treasury over the estimates made in 1864, as being necessary for the support of the prison for 1865 and 1866.

The prison buildings are not only out of repair, but will very soon be found wholly inadequate for the proper accommodation of the convicts. The Board of Inspectors, as well as the Agent, in their reports show that by the present ratio of increase, the prison must be filled to its utmost capacity before the close of the present year. To meet this contingency, they recommended that provision be at once made for extending the east wing one hundred feet, which will give room for 160 additional cells-making in all about 900 cells; and that eighty of these be completed, as that number in all probability will be required before the close of 1868. They also recommend the erection of a suitable female prison; likewise the removal of the east wall 300

feet east, in order to make room for additional workshops, and that such shops be erected as soon as practicable, as they will be needed very shortly; that so much prison walls be built as will be made necessary by these alterations and enlargements; that a portion of the west wall, which is now propped up with timber and is liable to fall at any moment, be taken down and re-built; and that certain repairs be made to the floors and other parts of the prison. These additions and repairs I consider really necessary, and can hardly conceive how they can be dispensed with; and I therefore concur in their recommendation.

Certain other improvements are also recommended, but which perhaps are not so imperatively demanded as those already enumerated.

Permit me to refer you to the very full and able Reports of the Inspectors and of the Agent, for 1865 and 1866, and to suggest the propriety, if not the absolute necessity, of a thorough and careful investigation of this whole matter. It is a subject of much importance and the time has undoubtedly arrived when the interests of the State require that it be fully met. It is not only necessary that the prison buildings be thoroughly repaired and enlarged, but that the whole prison system be revised. As now conducted, whilst the contractors for prison labor are realizing large fortunes from such labor, the tax-payers of the State are required annually to pay large sums for the support of the Prison. Some method should be devised whereby the Institution could be made to do far more than at present towards sustaining itself.

I will here briefly allude to another subject in connection with the Prison, which, to some extent, has become a matter of public discussion. I refer to the statement that convicts, sentenced for life, are improperly confined, and that such confinement, by inducing insanity, is a violation of the plain duty of Humanity. Want of space will not permit a discussion of these questions here; and in answer to this, I will briefly say,

that neither the premises nor the conclusions are quite correct. The practice has long prevailed in the Prison to release from solitary confinement, at the discretion of the Inspectors, and permit to labor, all who could, without risk, be thus indulged. And in nearly every case where a convict has become the subject of insanity, the malady has made its appearance whilst such convict was, and had been for a long time previous, enjoying tho privileges of a convict laborer. It is true that there are now in solitary confinement some six convicts who are more or less insane; and one of them is a raving maniac, whose sentence long since expired; but who is still retained there from motives of humanity and safety, and because no place has yet been provided by the public authority, and at the public expense, for the more suitable confinement and care of our homeless and friendless insane. Some legislative provision, I believe, should at once be made for this class of unfortunates.

I will also suggest, for your consideration, the propriety of some revision of the present law in relation to the compensation of the Inspectors, for their services. They are now permitted to receive pay for only thirty days in each year, and the amount is hardly sufficient to meet their actual expenses; whereas, those members, residing at a distance from the prison, have been compelled to devoto at least forty days to that duty. Their labors, for the last two years, have been very onerous, and I think should entitle them to some additional allowance.

THE PARDONING POWER.

In connection with the Stato Prison, the pardoning power should, I think, in this Message receive some consideration. At least, I deem it of some importance that my own views on this subject should be fully undesrtood. The exercise of this power by the Executive is one of the most difficult and perplexing in the whole range of his official dutics, and one, too, the real nature and importance of which, I apprehend, are the least understood by the public generally. In fact, many persons seem to think that it is simply a kind of patronage placed in the hands

of the Governor, to be used by him at will and from mere motives of mercy, or as an expression of his personal sympathy for the victims of the criminal law; and that he is not only at liberty to exercise it on every possible occasion, but is also under an obligation to do so whenever urged thereto by those sympathizing friends who commiserate the unfortunate condition of our State Prison convicts. Such persons forget that the adoption of a rule of official action like this must necessarily, in practice, become applicable to every case; and thus every convict would set up a claim to executive clemency. And this claim, upon the adoption of such a principle in the exercise of the pardoning power, would be well made; for if any one convict is entitled to a discharge from prison on mere grounds of clemency, then every other convict would have a right to ask that he too receive the benefit of such clemency. The door of escape being thus thrown open, the only effect of a conviction for crime would be to call into action the exercise of the pardoning power, and thus the prerogative of our judicial tribunals, which, by the Constitution and laws of our State, have exclusive jurisdiction over all criminal offenses, and alone are authorized to try the question of guilt, and to award the penalty for crime, would be entirely ignored by a coördinate branch of the Government, to which no such power has really been given.

Although, by the Constitution, absolute power is conferred upon the Executive to "grant reprieves, commutations and pardons, after convictions, for ALL offenses except treason and cases of impeachment, upon such conditions and with such restrictions and limitations as he may think proper," yet it does not follow, that because such power is possessed, he would be warranted in exercising it as a matter of course, for the benefit of all who seek to become its recipients, and who have been, it is to be presumed, legally tried, convicted and sentenced. There is a broad distinction between the power and the right to do the same thing. That the people in conferring this power upon their Executive, by the organic law of the State,

intended that this distinction should be observed; may fairly be inferred from the fact, that the Executive is required to communicate to the Legislature his reasons in each case of reprieve, commutation or pardon granted.

There is, however, another still stronger consideration against the loose and indiscriminate use of this power by the Executive. The Constitution declares that the powers of the Government are divided into thrce departments, the Legislative, Executive and Judicial; it then defines in general terms, the respective powers of each. The Legislative department is to enact all necessary laws; the Executive department is to see that the laws are faithfully executed, and to perform such other duties as are specially enumerated; and the Judicial department is to administer the laws, and in the performance of such duty, to hear and determine such accusations against those charged with criminal offenses, to decide upon the guilt or innocence of the accused, and to adjudge the penalty deserved by those who are found guilty. The constitution further declares that "no person belonging to one department shall exercise the powers properly belonging to another, except in the cases expressly provided for in this Constitution."

Now, in view of these provisions, I am clearly of the opinion that the Executive has no right to annul or make void by an exercise of the pardoning power, the acts and decisions of the judicial tribunals in the trial, conviction and sentence of any person, unless in one o two events: First, The discovery of such new facts as would if proved upon the trial, have established the innocence of the accused; or, Secondly, such as would have mitigated the offense as proved, and thereby entitled him to a less penalty than that which has been adjudged. Nor has the Executive the right, under the plea of exercising the pardoning power, to set aside the action of our courts, by opening again the issues on the same testimony, already passed upon by the competent legal tribunal; because this would be a violation of that provision of our constitution to which I have heretofore referred.