If the offence has been committed in the opinion that it was a right, or perhaps a praiseworthy act, and no danger accrues from pardoning, pardon ought certainly to be granted on all fair grounds, for instance, in cases of political offences.

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If the law is cruel, or obviously against the spirit of the whole society, there is no harm if the respective magistrate forms a rule for himself to grant conditional or entire pardons in all such cases, for instance, if no child is ever executed in England, although they are sentenced to die. But it becomes highly dangerous if by this privilege a chief magistrate sets himself up against a law, which he individually considers inexpedient; for instance, if he should be opposed to capital punishment, and on that ground were to pardon all convicts sentenced to die. He would legislate in a very important sphere solely and uncontrolled by society, for he would evidently change the law, which, nevertheless, he knew before entering office, and to maintain which, he took a sacred oath.

The reported reformation alone of the convict must in no case form a ground for pardoning. This is acknowledged, I believe, by almost all penologists of note and practical knowledge; and where it has been tried to hold out an abridgment of the punishment as reward for good behavior, the consequences have been found to be bad, as for instance, in France, where the officer who drew up the law holding out that reward, petitioned, after having observed its operation, for its abolition. (4) I speak here always of revised laws, and proper systems of punishments; for nothing can be given as a rule for bad laws and worse punishments. The hope of pardon for good behavior, which of course can never be abso

lutely known, leads to hypocrisy, and prevents the very reformation sought for, because it does not allow the prisoner to enter into that state of calm resignation which, according to all experience in criminal psychology, is an indispensable requisite for reformation. If the punishment is mild, and the penitentiary system sound, the truly reformed convict himself will hardly desire a pardon.

The pardoning magistrate ought to be influenced in conjunction with other considerations, by the nature of the guarantees the individual to be pardoned can offer, such as whether he knows a trade, has received some education, has honest relations who acknowledge him or not, and other pledges of a probably steady life.

(1) All France was deeply affected at this heart-rending event. Gazette des Tribuneaux, No. 1347 de 1829.

(2) I cannot forbear transcribing here a passage from Beccaria's Essay on Crimes and Punishments, Engl. Transl. Edinburgh, 1807, chap, xlvi. Beccaria will be allowed to be the best authority for a lenient spirit :

"As punishments become more mild, clemency and pardon are less necessary. Happy the nation in which they will be considered as dangerous! Clemency, which has often been deemed a sufficient substitute for every other virtue in sovereigns, should be excluded in a perfect legislation where punishments are mild, and the proceedings in criminal cases regular and expeditious. This truth will seem cruel to those who live in countries where, from the absurdity of the laws and the severity of punishments, pardons and the clemency of the prince are necessary. It is, indeed, one of the noblest prerogatives of the throne, but, at the same time, a tacit disapprobation of the laws. Clemency is a virtue which belongs to the legislator and not to the executor of the laws; a virtue which ought to shine in the code, and not in private judgment. To show mankind that crimes are sometimes pardoned, and that punishment is not the necessary consequence, is to nourish the flattering hope of impunity, and is the cause of their considering every punishment inflicted as an act of injustice and oppression. The prince, in pardoning, gives up the public security in favor of an individual, and, by ill-judged benevolence, proclaims a public act of impunity. Let, then, the legislator be tender, indulgent and humane.

(3) My letter to the Philadelphia Prison Society, p. 39.

(4) Mr. de la Ville de Mirmont, Inspector-General of the Central Prisons, says in his work, Observations sur les Maisons Centraites de Détention à l'Occasion de l'Ouvrage de Beaumont et Toqueville, Paris, 1833, p. 55 et seq. that he was the one who obtained the law in 1818, and that he often repented of it. The Bavarian code offers pardon after three fourths of the imprisonment have elapsed, if the conduct has been correct. Of course, the apportionment of punishments are made accordingly. I do not know how the law operates.

CHAPTER IV.

Judge, Juror, Advocate and Witness.-Official, external and moral Independence of the Judge. - Sanctissimus Judex of the Romans. -The Judge, where there is doubt, must interpret in Mercy, in Penal Cases; in Favor of civil Liberty, in all. -The Institution of the Jury.--The sacred Office of the Juryman. What is he to do, when the Law is contrary to universal Conscience? The Institution of the Advocate. - Moral Obligation of the Advocate. Political Relations of Lawyers in Free Countries. - Duties of the Wit

ness.

VIII. FROM all that has been said of justice, as the main and broad foundation of the state, of the superior sway of law as an indispensable requisite of civil liberty and the necessary independence of the judiciary, it must appear that there is no member of the state or officer of government superior in importance to the judge, and very few indeed, of equal importance with him. All mankind, if at all advanced in political civilisation, have agreed that an unjust judge defiles the very altar, for the service of which he was ordained a priest. The religious codes of the most distant and ancient people, the law books of the absolute governments of the East, fettered by hereditary casts, pronounce this universal feeling as distinctly, as the religions, laws or poetry of the modern or freest nationsthe Vedas as well as Shakspeare. A truckling judge fawning on power, whoever may possess it, whether monarch or people, is one of the most offensive and humiliating sights, and a demoralizing example to a

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nation. If it be shameful or criminal for a citizen, to whom no peculiar charge has been confided, to betray his country, it is doubly so in a judge to betray justice and liberty by swerving from what is just, true and right, in yielding to power, because to him in particular has their custody been confided, and in forsaking justice and liberty, he forsakes his country. It is painful to peruse the bad periods of monarchies or republics, when judges are found ready to bend the law according to the desire of the monarch or ruling party, and it is comforting indeed when we find on the other hand, men who comprehended the lofty character of the judge, and had sufficient firmness to stand as the independent interpreters or pronouncers of the law, for or against whomsoever this might be. The names of judges, great in their views, calm in their decisions and pure in all their life, who are known by the whole people to have distinguished themselves by unswerving honesty, and stout hearts, judges whose grasp, penetration and blandness of mind were equally great, form a moral element in the history of a nation-a part of the inherited and traditional stock of national virtue, of the greatest value, and give a moral tone and stability to the community, for which nothing else of equally great effect can be substituted. Those great judges which England counts in her history have done more good than the infamous ones, who have disgraced the British bench, have been able to counterbalance with evil. The greater the liberty the greater likewise, as is natural, the necessity of unbiased, clear, learned and strong-minded judges-that is, oracles of the law. This truth of general import has fully appeared from all the preceding parts of this work; but it is necessary