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?