Cyclopædia of Political Science, Political Economy, and the Political History of the United States

Edited by: Lalor, John J.
(?-1899)
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Editor/Trans.
First Pub. Date
1881
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New York: Maynard, Merrill, and Co.
Pub. Date
1899
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Includes articles by Frédéric Bastiat, Gustave de Molinari, Henry George, J. B. Say, Francis A. Walker, and more.
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PARDON.

III.28.1

PARDON. Pardon is the remission, granted by the sovereign or head of the state to a sentenced person, of the penalty imposed on him by the courts. Such penalty is sometimes replaced by a less severe one. This is what is called a commutation of sentence.

III.28.2

—Pardon, in contradistinction to amnesty, abolishes neither the offense nor the sentence.

III.28.3

—The utility of the right of pardon has been questioned by some publicists, as for instance, Beccaria, Bentham and even Rousseau, who have contested the necessity of its intervention. Beccaria desired to introduce clemency into the law, but not into the execution of its judgments. He thought that the moderation of penalties and the "perfection of the law" would render pardons superfluous. "The right to remit the penalty imposed on the culprit," he said, "is a tacit disapprobation of the laws." This inflexible rule, which attributes the same weight and measure to all acts of the same nature, although in the infinite variety of human affairs they differ considerably one from the other, and never have the same moral value, has been condemned by experience, which has rejected the system of the fixity of penalties. J. J. Rousseau, although less absolute than Beccaria, reached almost the same conclusions. "The right of pardon," says Rousseau, "or of exempting a culprit from the penalty declared by the law and pronounced by the judge, belongs only to one who is above the judge and the law, that is, to the sovereign; moreover, the right of the sovereign to exercise the pardoning power is not quite clear, and the cases in which that power should be exercised are very rare. In a well-governed state there are but few punishments, not because pardon is very frequent, but because there are few criminals; the multitude of crimes insures their impunity when the state is in a condition of decay. * * Frequent cases of pardon indicate that crimes will soon have no need of it."

III.28.4

—More recently than Rousseau's time clemency in the execution of penalties found new adversaries. Mr. Livingston, an American, opposed it in principle, and proposed at least to restrict its application to certain cases. "The pardoning power," said he, "should not be exercised except in cases in which the innocence of the prisoner is discovered after he has been condemned, or in case of his sincere and complete reformation." These few words give utterance to several errors: first, if a person condemned is found to be innocent after his condemnation, there can be no such thing as pardon; the judicial error should be corrected, and the sentence of condemnation annulled. Then, it is not correct to say that the reformation of the person condemned and his moral amendment should of themselves constitute a motive for the intervention of the pardoning power. Mr. Livingston, whom we have just cited, would, without doubt, have expressed himself differently had he borne political crimes and offenses in mind. We do not deny that repentance and the return to moral sentiments may, in the case of ordinary crimes, be made a condition of pardon. The thief and the murderer should not be allowed to re-enter society without giving it a pledge for their moral behavior. But political crimes and offenses have a special character: they do not manifest in their author the same degree of perversity as common crimes, and conscience does not express the same reprobation for them. This class of offenses, in most cases, constitutes just as serious a violation of a moral law as ordinary offenses, but not of the same law. Common crimes are crimes everywhere; political acts are crimes only in a variable and, in a sense, conditional manner. It might be said that circumstances make and unmake them. "The immorality of political offenses," says Guizot, "is neither as clear nor as immutable as that of ordinary crimes; it is always crossed or obscured by the vicissitudes of human affairs; it varies with the time, with events and with the rights and merits of power.

III.28.5

—Public conscience is subject to reaction in favor of persons condemned for political offenses; it can not be so subject in favor of persons condemned for ordinary crimes. Public conscience amnesties the former, it pardons the latter, but it never amnesties them, it forgives but does not forget them.

III.28.6

—How, then, can we subordinate the right of pardon in matters political to conditions of reformation and private morality, as has been proposed by Mr. Livingston? What makes repression necessary in cases of this kind is not the immorality and perversity of the person committing the offense, but political causes which must be subjected in their action to the general principles of justice and of right; the opportuneness, sometimes even the necessity, of pardon, depends on the same causes. Circumstances which change, occasions which pass away, passions which become abated, parties which are dissolved: all of these contribute toward diminishing the importance of a person condemned for a political offense." (Théorie du Code pénal, by MM. Chauveau et Faustin Hélie.)

III.28.7

—In politics, the pardon granted the culprit (who sometimes is but a vanquished adversary) produces the happiest effect in favor of the power granting it; it impresses the minds of the people with the spectacle of power and greatness, and at the same time disarms the parties. "Monarchs," says Montesquieu, "have so much to gain by clemency, they derive so much glory from it, that in almost every instance it is for them a piece of good fortune to have an opportunity to exercise clemency.

III.28.8

—How many examples are there, on the contrary, of powers pursued to death by the cry of blood uselessly spilt, and which have perished for not having pardoned in time!

III.28.9

—But when should we punish and when pardon?" Montesquieu proposed that question to himself, which it is not an easy task to solve. Clemency, says he, should not degenerate into weakness, nor should it bring the prince who exercises it into contempt. Clemency, it is true, may have its dangers, but neither is implacable severity without its dangers; the latter produces terror, which offers but an unsteady basis to power: Non diuturni timor magister officii, and provokes retaliation. If we can not help going to extremes it is better to sin by an excess of clemency. It is not certain that this is not the better policy, even as far as duration is concerned; and posterity, which admires the victor, gives its love to the indulgent.*18

EMILE CHÉDIEU.


Notes for this chapter


18.
No attempt has been made in the above to give the actual law, constitutional and other, relative to the pardoning power; this Cyclopædia being one of politics and political economy, mainly, and not of law.

—In the United States the power to pardon offenders is vested by the several state constitutions in the governor. It is not, however, a power which necessarily inheres in the executive. (State vs. Dunning, 9 Ind., 22.) And several of the state constitutions have provided that it shall be exercised under such regulations as shall be prescribed by law. There are provisions more or less broad to this purport in those of Kansas, Florida, Alabama, Arkansas, Texas, Mississippi. Oregon, Indiana, Iowa and Virginia. In State vs. Dunning, 9 Ind., 20, an act of the legislature requiring the applicant for the remission of a fine or forfeiture to forward to the governor, with his application, the opinion of certain county officers as to the propriety of the remission, was sustained as an act within the power conferred by the constitution upon the legislature to prescribe regulations in these cases. And see Branham vs. Lange, 16 Ind., 500. The power to reprieve is not included in the power to pardon. (Cooley.)

Footnotes for PARLEY.

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