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disordered state, the attribute of mercy in the ruler, and the right of pardoning flowing from it, was of great importance, and, upon the whole, probably of great benefit to the people. The fact that the pardoning power necessarily originated with the sovereign power, and that the rulers were considered the sovereigns, is the reason why, when jurists came to treat of the subject, they invariably presented it as an attribute indelibly inhering in the crown. The monarch alone was considered the indisputable dispenser of pardon ; and this again is the historical reason why we have always granted the pardoning privilege to the chief executive, because he stands, if any one visibly does, in the place of the monarch of other nations, forgetting that the monarch had the pardoning power not because he is the chief executive, but because he was considered the sovereign
—the self-sufficient power from which all others flow; while with us the governor or president has but a delegated power and limited sphere of action, which by no means implies that we must necessarily or naturally delegate, along with the executive power, also the pardoning authority.
Although the pardoning power has always existed, and has been abandoned by ultra despotism for the sake of despotism itself, yet the abuse to which it easily leads, and the apparent incongruity which it involves, have induced many men of deep reflection, in ancient as well as in modern times, to raise their voices against it: of whom we may mention Plato and Cicero4 among the ancients, and Pastoret,5 Servin, Filangieri, and the benevolent Beccaria among the moderns. The latter, the pioneer of penal reform, and one of the benefactors of mankind, has the following remarkable passage :
4 Cicero in Verrem 7.
5 Des Lois Penales. 6 Crimes and Punishments, chap. 46, on Pardons; English Translation, 1807.
“As punishments become more mild, clemency and pardon are less necessary. Happy the nation in which they will be considered as dangerous ! Clemency, which has often been deemed a sufficient substitute for every other virtue in sovereigns, should be excluded in a perfect legislation where punishments are mild, and the proceedings in criminal cases regular and expeditious. This truth may seem cruel to those who live in countries where, from the absurdity of the laws and the severity of punishments, pardons and the clemency of the prince are necessary. It is, indeed, one of the noblest prerogatives of the throne; but at the same time a tacit disapprobation of the laws. Clemency is a virtue which belongs to the legislator, and not to the executor of the laws; a virtue which ought to shine in the code, and not in private judgment. To show mankind that crimes are sometimes pardoned, and that punishment is not a necessary consequence, is to nourish the flattering hope of impunity, and is the cause of their considering every punishment inflicted as an act of injustice and oppression. The prince, in pardoning, gives up the public security in favor of an individual, and by ill-judged benevolence proclaims a public act of impunity. Let, then, the legislator be tender, indulgent, and humane.”
Among the truths of this passage there are some errors, the exhibition of which will at once lead us to the copsideration whether the pardoning power, having already been admitted as an extraordinary and super-legal one, be necessary at all in a well and liberally constituted government, or ought to be suffered in a community which acknowledges the sovereignty of the law. Beccaria says that clemency should be excluded in a perfect legislation, and that pardon is a tacit disapprobation of the law. This is erroneous. No legislation can ever be perfect in the sense in which it is taken here, namely, operating in all cases, in the same manner toward exactly the same end, for which the legislator has enacted the law; because the practical cases to which the laws apply are complex, and often involve conflicting laws; because the legislator, though he were the wisest, is but a mortal with a finite mind, who cannot foresee every combination of cases; because the changes of society, things, and relations necessarily change the effect produced by the same laws; and because the law-maker cannot otherwise than cast the rules of action, which he prescribes, in human language, which of itself is ever but an imperfect approximation to that which is to be expressed.
Laws cannot, in the very nature of things, be made abstract mathematical rules; and so long as we live on this earth, where we do not see “face to face,” where mind cannot commune with mind except through signs which have their inherent imperfections, cases must frequently occur in which the strict and formal application of the law operates against essential justice, so that we shall actually come to the conclusion that, in a country in which the sovereignty of the laws is justly acknowledged, we stand in need of a conciliatory power to protect ourselves against a tyranny of the law, which would resemble the bed of Procrustes, and would sometimes sacrifice essential justice as a bleeding victim at the shrine of unconditional and inexorable law itself. It is to these cases, among others, that the adage of the jurists themselves applies : Summum jus, summa injuria. We take it then for granted on all hands, that, justice being the great end of all civil government, and law the means to obtain it, the pardoning power is necessary in order to protect the citizen against the latter, whenever, in the peculiar combination of circumstances, it militates with the true end of the state, that is, with justice itself. But it is equally true that the supremacy of the law requires that the extraordinary power of pardoning
be wielded in the spirit of justice, and not according to individual bias, personal weakness, arbitrary view, or interested consideration ; a truth which is the more important in our country, because the same principles which make us bow before the law as our supreme earthly ruler, also bring the magistrate so near to the level of the citizen that he who is invested with the pardoning power is exposed to a variety of influences, individual and political, which have a powerful, and often, as practice shows, an irresistible effect, although there is no inherent connection between them and the cases to which the pardon is applied—influences, therefore, which in this respect are arbitrary or accidental. All arbitrariness, however, is odious to sterling freedom in general, and the arbitrary use of the pardoning power and its frequency produce the most disastrous consequences in particular.
It unsettles the general and firm reliance on the law, an abiding confidence in its supremacy, and a loyal love of justice.
It destroys the certainty of punishment, which is one of the most important and efficacious elements in the whole punitory scheme; and it increases the hope of impunity, already great, in the criminally disposed, according to the nature of man and the necessary deficiency even of the best contrived penal systems.
It endangers the community, since it is perfectly true what the prince of poets, in his great wisdom, has said :
• Mercy is not itself, that oft looks so;
Pardon is still the nurse of second wo.' It interferes most effectually with the wise objects of reform which our penitentiary systems aim at; for all men, practically acquainted with their operation, are agreed that reform never fairly begins in a convict before he has
calmly made up his mind to submit to the punishment, and so long as a hope of pardon leads his thoughts from the prison cell to the anticipated enjoyment of undue enlargement-a phenomenon easily to be accounted for upon psy• chological grounds.
It induces large numbers of well-disposed persons, male and female, from a superficial feeling of pity, to meddle with cases of which they have no detailed knowledge, and with a subject the grave importance of which has never presented itself to their minds.
It largely attracts to the community, in which the pardoning power is known to be abused, criminals from foreign parts where such an abuse does not exist; it imports crime.
It makes every sentence, not pardoned, an unjust one; for, in matters of state, every act should be founded on right and equal justice.? No one, therefore, has the right, whatever his power may be, to extend a favor to one without extending it to all equally situated, and, consequently, equally entitled to the favor. The doctrine of Dr. Paley, of “ assigning capital punishment to many kinds of offences, but inflicting it only upon a few examples of each kind,” which he actually calls one of the “two methods of administering penal justice," amounts to revolting monstrosity if practically viewed, and to an absurdity in a philosophical and scientific point of view.
It adds, with the very commonly annexed condition of
? Lord Mansfield is reported justly to have remarked to George III., who wished to save the Rev. Dr. Dodd from the gallows, to which he had been sentenced for forgery: “If Dr. Dodd does not suffer the just sentence of the law, the Perreaus may be said to have been murdered.” Holliday's Life of Lord Mansfield, London, 1797, p. 149. The Perreaus were apothecaries of very high standing, but had been hanged for forgery, in spite of the most weighty petitions.