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 Kent's Comm. Lect. 13, p. 265.
- ↑ 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."[a 1] 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.
vol. iii.44
