governed state, there are but few executions; not be cause many are pardoned, but because there are few criminals. Under the Roman republick, neither the senate nor the consuls ever attempted to grant pardons: even the people never did this, although they sometimes recalled their own sentence. ▾

In Persia, when the king has condemned a person, it is no longer lawful to mention his name, or to intercede in his favour. Though his majesty were drunk and beside himself; yet the decree must be executed; otherwise he would contradict himself; and the law admits of no contradiction.

W

"Extremes, in nature, equal ends produce;" so in politicks, as it would seem.

The more general opinion, however, is, that in a state, there ought to be a power of pardoning offences. The exclusion of pardons, says Sir William Blackstone, must necessarily introduce a very dangerous power in the judge or jury, that of construing the criminal law by the spirit instead of the letter; or else it must be holden, what no man will seriously avow, that the situation and circumstances of the offender (though they alter not the essence of the crime) ought to make no distinction in the punishment. *

I cannot, upon this occasion, enter into the discussion of the great point suggested and decided, in a very few words, by the learned Author of the Commentaries— that judges and juries have no power of construing the

v Rous. Or. Com. 54. 1. 2. c. 5.

w Mont. Sp. L. b. 3. c. 10.

* 4. Bl. Com. 390.

criminal law by the spirit instead of the letter. But I cannot, upon any occasion, suffer it to pass under my notice, without entering my caveat against implicit submission to this decision. I well know the humane rule, that, in the construction of a penal law, neither judge nor jury can extend it to facts equally criminal to those specified in the letter, if they are not contained in the letter. But I profess myself totally ignorant of any rule -I think it would be an inhuman one-that the letter of a penal law may be carried beyond the spirit of it; and it may certainly be carried by the letter beyond the spirit, if judges and juries are prohibited, in construing it, from considering the spirit as well as the letter. But to return to our present subject.

The most general opinion, as we have already observed, and, we may add, the best opinion, is, that, in every state, there ought to be a power to pardon offences. In the mildest systems, of which human societies are capable, there will still exist a necessity of this discretionary power, the proper exercise of which may arise from the possible circumstances of every conviction. Citizens, even condemned citizens, may be unfortunate in a higher degree, than that, in which they are criminal. When the cry of the nation rises in their favour; when the judges themselves, descending from their seats, and laying aside the formidable sword of justice, come to supplicate in behalf of the person, whom they have been obliged to condemn; in such a situation, clemency is a virtue; it becomes a duty.

But where ought this most amiable prerogative to be placed? Is it compatible with the nature of every species of government? With regard to both these questions, different opinions are entertained.

With regard to the last, the learned Author of the Commentaries on the laws of England declares his unqualified sentiment-"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 impolitick for the power of judging and of pardoning to centre in one and the same person. This would oblige him (as the President Montesquieu observes) 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 were discharged by his innocence, or obtained a pardon through favour. In Holland, therefore, if there be no stadtholder, there is no power of pardoning lodged in any other member of the state.

"But in monarchies, the king acts in a superiour sphere; and though he regulates the whole government as the first mover, yet he does not appear in any of the disagreeable or invidious parts of it. Whenever the nation see him personally engaged, it is only in works of legislature, magnificence, or compassion.'

,, у

Let us observe, by the way, the mighty difference between the person described by Selden, as the first magistrate among the Saxons, and him described by Sir William Blackstone, as the monarch of England since that period. The former was set in regular motion by the laws the latter is the first mover, who regulates the whole government.

y 4. Bl. Com. 390. 391.

Let me also repeat here, what has been mentioned in another place. One of the most enlightened writers on English jurisprudence imagines, that the power of pardoning is a power incommunicable to the democratical species of government. For the western world new and rich discoveries in jurisprudence have been reserved. We have found, that this species of government-the best and the purest of all-that, in which the supreme power remains with the people—is capable of being formed, arranged, proportioned, and organized in such a manner, as to exclude the inconveniences, and to secure the advantages of all the others.

Why, according to Sir William Blackstone, can the power to pardon never subsist in a democracy? Because, says he, there, nothing higher is acknowledged, than the magistrate, who administers the laws. By pursuing the principle of democracy to its true source, we have discovered, that the law is higher than the magistrate, who administers it; that the constitution is higher than both; and that the supreme power, remaining with the people, is higher than all the three. With perfect consistency, therefore, the power of pardoning may subsist in our democratical governments: with perfect propriety, we think, it is vested in the president of the United States.

The constitution, too, of Pennsylvania, animated by the wise and powerful recommendation, conveyed, by innumerable channels, to the convention, which proposed and framed it, "that they should imitate, as far as it applies, the excellent model exhibited in the constitution of the United States"-the constitution of Pennsylvania 2

z Art. 2. s. 9.

vests the power of pardoning in the governour of the commonwealth.

It is by no means, however, a unanimous sentiment, if we collect the publick sentiment from the constitutions of the different states of the Union, that the power of pardoning criminals should be vested solely in the supreme executive authority of the state.

By the constitution of New York, the governour, in cases of treason or murder, can only suspend the execution of the sentence, until it shall be reported to the legislature, at their subsequent meeting; and they shall either pardon, or direct the execution of the crimi nal, or grant a further reprieve.

b

In the state of Delaware the governour possesses the power of granting pardons, except where the law shall otherwise direct. A similar legislative control is imposed on the governours of Maryland, Virginia, and North Carolina, by the constitutions of those states.d

с

Cons. Mar. s. 33. Cons. Vir. p. 127. Cons. N. C. s. 19.

d By the present constitution of Delaware, this legislative control over the power of the governour to grant pardons is destroyed -Art. 3. s. 9. In Vermont, the power of the executive to grant pardons is restrained in cases of treason and murder; in which they have power "to grant reprieves, but not to pardon, until after the end of the next session of assembly." Cons. c. 2. s. 11. By the constitution of Kentucky, the power of pardoning is, in cases of treason, vested in the general assembly, but the governour may grant reprieves until the end of their next session. Art. 3. s. 11. In Tennessee and Ohio, pardons can be granted only after conviction Cons. Ten. art. 2. s. 6. Cons. Ohio, art. 2. s. 5. In Georgia like,