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.

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CHAPTER IV