Page:Joseph Story, Commentaries on the Constitution of the United States (1st ed, 1833, vol III).djvu/354

 346 § 1489. Mr. Justice Blackstone says, that "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 impolitic for the power of judging, and of pardoning to center in one and the same person. This (as the president Montesquieu, observes) would oblige him 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 was discharged by his innocence, or obtained a pardon through favour." And hence, he deduces the superiority of a monarchical government; because in monarchies, the king acts in a superior sphere; and may, therefore, safely be trusted with the power of pardon, and it becomes a source of personal loyalty and affection.

§ 1490. But, surely, this reasoning is extremely forced and artificial. In the first place, there is no more difficulty or absurdity in a democracy, than in a monarchy, in such cases, if the power of judging and pardoning be in the same hands; as if the monarch be at once the judge, and the person, who pardons. And Montesquieu's reasoning is in fact addressed to this very case of a monarch, who is at once the judge, and dispenser of pardons." In the next place, there is no inconsistency in a democracy any more, than in a monarchy, in entrusting one magistrate with a powder to try