A jury is empanelled to tell you the genetical name of the action; a judge presides, to read out of the volume of the law the prescription annexed to that name; last of all comes the court of enquiry, which is to decide whether the prescription of the dispensatory is suitable to the circumstances of this particular case. This authority we are accustomed to invest, in the first instance with the judge, and in the last resort with the king in council. Now, putting aside the Propriety or impropriety of this particular selection, there is one grievous abuse which ought to strike the most superficial observer. These persons with whom the principal trust is reposed consider their functions in this respect as a matter purely incidental, exercise them with supineness, and, in many instances, with the most scanty materials to guide their judgement. This grows in a considerable degree out of the very name of pardon, by which we are accustomed to understand a work of supererogatory benevolence.
From the manner in which pardons are dispensed inevitably flows the uncertainty of punishment. It is too evident that punishment is inflicted by no certain rules, and therefore creates no uniformity of expectation.
Uniformity of treatment, and constancy of expectations form the sole basis of a genuine morality. In a just form of society, this would never go beyond the sober expression of those sentiments of approbation or disapprobation with which different modes of conduct inevitably impress us. But, if we at present exceed this line, it is surely an execrable refinement of injustice that should exhibit the perpetual menace of suffering, unaccompanied with any certain rule foretelling its application. Not more than one third of the offenders whom the law condemns to death in this metropolis are made to suffer the punishment that is awarded. Is it possible that each offender should not flatter himself that he shall be among the number that escapes?
Such a system, to speak it truly, is a lottery of death, in which each man draws his ticket for reprieve or execution, as undefinable accidents shall decide.
It may be asked whether 'the abolition of law would not produce equal uncertainty?' By no means. The principles of king and council, in such cases, are very little understood, either by themselves or others. The principles of a jury of his neighbours, commissioned to pronounce upon the whole of the case, the criminal easily guesses. He has only to appeal to his own sentiments and experience. Reason is a thousand times more explicit and intelligible than law; and when we were accustomed to consult her, the certainty of the decisions would be such as men, practised in our present courts, are totally unable to conceive.
Another important consequence grows out of the system of pardons. AChapter ystem of pardons is system of unmitigated slavery. I am taught to expect a certain desirable event, from what? From the clemency, the uncontrolled, unmerited kindness of a fellow mortal. Can any lesson be more degrading?
The pusillanimous servility of the man, who devotes himself with everlasting obsequiousness to another, because that other, having begun to be unjust, relents in his career; the ardour with which he confesses the equity of his sentence and the enormity of his deserts will constitute a tale that future ages will find it difficult to understand.
What are the sentiments in this respect that are alone worthy of a rational being? Give me that, and that only, which without injustice you cannot refuse. More than justice it would be disgraceful for me to ask, and for you to bestow. I stand upon the foundation of right. This is a title which brute force may refuse to acknowledge, but which all the force in the world cannot annihilate. By resisting this plea, you may prove yourself unjust;Chapter ut, in yielding to it, you grant me but my due. If, all things considered, I be the fit subject of a benefit, the benefit is merited: merit, in any other sense, is contradictory and absurd. If you bestow upon me unmerited advantage, you are a recreant from the general good. I may be base enough thank you; but, if I were virtuous, I should condemn you.
These sentiments alone are consistent with true independence of mind.
He that is accustomed to regard virtue as an affair of favour and grace cannot be eminently virtuous. If he occasionally perform an action of apparent kindness, he will applaud the generosity of his sentiments; and, if he abstain, he will acquit himself with the question, 'May I not do what IChapter ill with my own?' In the same manner, when he is treated benevolently by another, he will, in the first place, be unwilling to examine strictly into the reasonableness of this treatment, because benevolence, as he imagines, is not subject to any inflexibility of rule; and, in the second place, he will not regard his benefactor with that erect and unembarrassed mien, that manly sense of equality, which is the only unequivocal basis of virtue and happiness.