He regretted that such an opinion and plan had been proposed by
the Chief Justice. It must have arisen from the politics of
the Supreme Court. The judges of that court had been occupied
so much in politics that they had been compelled to press upon
the public a system that had nothing else to recommend it than
such a relief to themselves from the burthen of official duties
as would leave them to the free exercise of their
electioneering qualifications. But for this, the Chief Justice
might have shown a Holt, or a Mansfield. The elevated
character of the Chancellor had been often asserted and alluded
to. He meant no disrespect to that honorable gentleman. He
respected him as highly as any man when he confined himself to
the discharge of the official duties of his office; but when he
stepped beyond that line; when he became a politician, instead
of being his fancied oak, which, planted deeply in our soil,
extended its branches from Maine to Mexico, he rather resembled
the Bohon Upas of Java, that destroyed whatever sought for
shelter or protection in its shade.[Footnote: Reports of the
Proceedings and Debates of the Convention of 1821, 615.]

The pardoning power is essentially of a political nature. Judicial officers are to do justice. Mercy is an act of policy or grace. A pardon after conviction presupposes guilt. Nevertheless, in a few States this royal prerogative of pardoning has been committed to a board of officers, headed by the Governor, of which some of the judiciary are members. There is this advantage in it, that judges know best how fully circumstances of extenuation are always taken into account by the court before pronouncing sentence, and therefore cannot but exercise a restraining power against the influences of mere sentimental promptings to inconsiderate clemency.

It may be said, in general, that the tendency towards keeping the judiciary apart from any active connection with the executive department has steadily increased since the first quarter of the nineteenth century.

When our position as a neutral power, in 1793, involved us in serious questions affecting the rights of Great Britain and France, Washington's cabinet advised him that the ministers of those countries be informed that the points involved would be referred to persons learned in the law, and that with this in view the Justices of the Supreme Court of the United States be invited to come to the capitol, six days later, "to give their advice on certain matters of public concern, which will be referred to them by the President."[Footnote: Jefferson's Writings, Library Ed., I, 370.] Nothing of this nature would now be dreamed of, under any conditions.

The American Judiciary by Baldwin, Simeon E., LLD, 1840-1927

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CHAPTER IV

THE FORCE OF JUDICIAL PRECEDENTS