ty of the course of justice.' But if this be a defect at all, it arises from the infirmity of human nature generally; and in this view, is no more objectionable, than any other power of government; for every such power, in some sort, arises from human infirmity. But if it be meant, that it is an imperfection in human legislation to admit the power of pardon in any case, the proposition may well be denied, and some proof, at least, be required of its sober reality. The common argument is, that where punishments are mild, they ought to be certain; and that the clemency of the chief magistrate is a tacit disapprobation of the laws. But surely no man in his senses will contend, that any system of laws can provide for every possible shade of guilt, a proportionate degree of punishment. The most, that ever has been, and ever can be done, is to provide for the punishment of crimes by some general rules, and within some general limitations. The total exclusion of all power of pardon would necessarily introduce a very dangerous power in judges and juries, of following the spirit, rather than the letter of the laws; or, out of humanity, of suffering real offenders wholly to escape punishment; or else, it must be holden, (what no man will seriously avow,) that the situation and circumstances of the of fender, though they alter not the essence of the offence, ought to make no distinction in the punishment. There are not only various gradations of guilt in the commission of the same crime, which are not susceptible of any previous enumeration and definition; but the proofs must, in many cases, be imperfect in their own nature, not only as to the actual commission of the

1 Beccaria, ch. 46; 1 Kent. Comm. Lect. 13, p. 265; 4 Black. Coinm. 307; 2 Wilson's Law Lect. 193 to 198.

2 4 Black. Comm. 397.

offence, but also, as to the aggravating or mitigating circumstances. In many cases, convictions must be founded upon presumptions and probabilities. Would it not be at once unjust and unreasonable to exclude all means of mitigating punishment, when subsequent inquiries should demonstrate, that the accusation was wholly unfounded, or the crime greatly diminished in point of atrocity and aggravation, from what the evidence at the trial seemed to establish? A power to pardon seems, indeed, indispensable under the most correct administration of the law by human tribunals; since, otherwise, men would sometimes fall a prey to the vindictiveness of accusers, the inaccuracy of testimony, and the fallibility of jurors and courts.1 Besides; the law may be broken, and yet the offender be placed in such circumstances, that he will stand, in a great measure, and perhaps wholly, excused in moral and general justice, though not in the strictness of the law. What then is to be done? Is he to be acquitted against the law; or convicted, and to suffer punishment infinitely beyond his deserts? If an arbitrary power is to be given to meet such cases, where can it be so properly lodged, as in the executive department? 2

1 1 Kent's Comm. Lect. 13, p. 265.

2 Mr. Chancellor Kent has placed the general reasoning in a just light. "Were it possible," says he "in every instance, to maintain a just proportion between the crime and the penalty, and were the rules of testimony and the mode of trial so perfect, as to preclude mistake, or injustice, there would be some colour for the admission of this (Beccaria's) plausible theory. But even in that case policy would sometimes require a remission of a punishment, strictly due for a crime certainly ascertained. The very notion of mercy implies the accuracy of the claims of justice."* What should we say of a government, which purported to act upon mere human justice, excluding all opera* 1 Kent's Comm. Lect. 13, p. 265.

§ 1489. Mr. Justice Blackstone says, that "in democracies, this power of pardon can never subsist; for, there, nothing higher is acknowledged, than the magistrate, who administers the laws; and it would be impolitic for the power of judging, and of pardoning to center in one and the same person. This (as the president Montesquieu, observes) would oblige him very often to contradict himself, to make and unmake his decisions. It would tend to confound all ideas of right among the mass of the people, as they would find it difficult to tell, whether a prisoner was discharged by his innocence, or obtained a pardon through favour." And hence, he deduces the superiority of a monarchical government; because in monarchies, the king acts in a superior sphere; and may, therefore, safely be trusted with the power of pardon, and it becomes a source of personal loyalty and affection.3

§ 1490. But, surely, this reasoning is extremely forced and artificial. In the first place, there is more difficulty or absurdity in a democracy, than in a monarchy, in such cases, if the power of judging and pardoning be in the same hands; as if the monarch be at once the judge, and the person, who pardons. And Montesquieu's reasoning is in fact addressed to this very case of a monarch, who is at once the judge, and dispenser of pardons. In the next place, there is no inconsistency in a democracy any more, than in a monarchy, in entrusting one magistrate with a power to try

tions of mercy in all cases? An inexorable government would scarcely be more praiseworthy, than a despotism. It would be intolerable and unchristian.

1 Montesq. Spirit of Laws, B. 6, ch. 5.

2 4 Black. Comm. 397, 398.

3 Ibid.

4 Montesq. B. 6, ch. 5.

the cause, and another with a power to pardon. The one power is not incidental to, but in contrast with the other. Nor, if both powers were lodged in the same magistrate, would there be any danger of their being necessarily confounded; for they may be required to be acted upon separately, and at different times, so as to be known as distinct prerogatives. But, in point of fact, no such reasoning has the slightest application to the American governments, or, indeed, to any others, where there is a separation of the general departments of government, legislative, judicial, and executive, and the powers of each are administered by distinct persons. What difficulty is there in the people delegating the judicial power to one body of magistrates, and the power of pardon to another, in a republic any more, than there is in the king's delegating the judicial power to magistrates, and reserving the pardoning power to himself, in a monarchy ?1 In truth, the learned author, in his extreme desire to recommend a kingly form of government, seems on this, as on many other occasions, to have been misled into the most loose and inconclusive statements. There is not a single state in the Union, in which there is not by its constitution a power of pardon lodged in some one department of government, distinct from the judicial. And the power of remitting penalties is in some cases, even in England, entrusted to judicial officers.3

§ 1491. So far from the power of pardon being in

1 Mr. Rawle's Remarks upon this subject are peculiarly valuable, from their accuracy, philosophical spirit, and clearness of statement. Rawle on Const. ch. 17, p. 174 to 177.

21 Tucker's Black. Comm. App. 331; 2 Wilson's Law Lect. 193

to 200.

3 Bacon's Abridg. Court of Exchequer, B.

compatible with the fundamental principles of a republic, it may be boldly asserted to be peculiarly appropriate, and safe in all free states; because the power can there be guarded by a just responsibility for its exercise. Little room will be left for favouritism, personal caprice, or personal resentment. If the power should ever be abused, it would be far less likely to occur in opposition, than in obedience to the will of the people. The danger is not, that in republics the victims of the law will too often escape punishment by a pardon; but that the power will not be sufficiently exerted in cases, where public feeling accompanies the prosecution, and assigns the ultimate doom to persons, who have been convicted upon slender testimony, or popular suspicions.

§ 1492. The power to pardon, then, being a fit one to be entrusted to all governments, humanity and sound policy dictate, that this benign prerogative should be, as little as possible, fettered, or embarrassed. The criminal code of every country partakes so much of necessary severity, that, without an easy access to exceptions in favour of unfortunate guilt, justice would assume an aspect too sanguinary and cruel. The only question is, in what department of the government it can be most safely lodged; and that must principally refer to the executive, or legislative department. The reasoning in favour of vesting it in the executive department may be thus stated. A sense of responsibility is always strongest in proportion, as it is undivided. A single person would, therefore, be most ready to attend to the force of those motives, which

1 Kent's Comm. Lect. 13, p. 266.