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CHAPTER XVII.

OF THE POWER TO GRANT PARDONS.

A power to grant reprieves and pardons is expressly given to the president.

That punishments should in all cases be strictly appropriate to the offence and certain in their execution, is indeed the perfection of criminal law, but the fallibility of human judgment would render an inflexible rule to this effect, too severe for human nature. An act may fall within the purview of the law and justly subject the party to conviction; yet there may be alleviating circumstances, which induce even those who deliver the verdict or pronounce the judgment, to feel repugnance at its being executed: but it would tend to overthrow the barriers of law, if the tribunal which is to decide on the guilt or innocence of the accused, were permitted to intermix other considerations. At first view, benevolent minds would not object to the admission of these principles in favour of the accused, on his trial, but the general interests of society have a stronger claim on the humanity of feelings justly regulated, than the particular case of the individual. The general interest requires that the administration of justice should not be diverted from its settled course, by an erroneous assumption of power and an irregular distribution of justice. If the law is plain, the duty of the tribunal is to conform to it, because the law is as compulsory on the tribunal as on the offender.

But the condition of society would be miserable if the severity of the law could in no form be mitigated, and if those considerations which ought not to operate on a jury or a judge could have no influence elsewhere.

Independently of other views, we may instance the case of treason against the state. Public policy may require that the offenders, though convicted, should be forgiven: severity may increase the opposition of that part of the community which was engaged in the combination; mercy may produce conciliation and submission; but if the guilt is proved, no such considerations can be admitted into the deliberations of the court. It is therefore expedient and wise, to deposit in some other part of the government, the power or granting pardons; a power, which notwithstanding the strange assertions of Blackstone and Montesquieu, is not inconsistent with the nature of a democratic government. 1 The most illustrious minds are sometimes seduced from plain and obvious truths by the illusions of theory, and when we are told that the power of pardon can never subsist in democracies, because nothing higher is acknowledged than the magistrate who administers the law, and because it would 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, we must at once perceive that the position is fallacious, by being too general.

The inconvenience suggested in the latter member of it, corresponds indeed with what has been already observed, if confined to the judicial tribunal that originally acts on the case, but the first part of it indicates a want of acquaintance with the subdivisions of authority compatible with the purest democracy. It is the office of the judge to convict the guilty; the execution of the sentence is the duty of the executive authority, the time and place of execution are no part of the judgment of the court. 2 It is true, that during a vacancy in the office of president, which as has been seen, is carefully provided against, there would be no power to grant a pardon, but the moment the office is again filled, the power would be revived.

The power to grant pardons extends to all cases, except impeachments. Some considerations on the subject of impeachments will be presented hereafter; at present, it may not be improper to observe, that not only in the Constitution of the United States, but in those of almost every state in the Union, we find the English doctrine of impeachments introduced, but the difference in respect to granting pardons to the persons impeached is not preserved.

Impeachments are generally efforts of the people of that country through their representatives in the house of commons, to obtain redress before a distinct and independent tribunal, for the malpractices of the great officers of the crown. No pardon previously granted, can shelter the accused from a full inquiry, and thus his misconduct, if substantiated, is developed and exposed to the nation, but after the impeachment has been solemnly heard and determined, it is not understood that the royal grace is further restrained or abridged.

With us, no pardon can be granted either before or after the impeachment; and perhaps, if this mode of trial is retained at all, it is right that the sentence of a guarded and august tribunal, which, as we shall find, is exceedingly limited in the extent of its punishments, should be excepted from the general power of the president to defeat the effect of the condemnation.

In respect to another jurisdiction, it may be doubted whether he possesses the power to pardon.

It seems to result from the principle on which the power to punish contempts of either house of the legislature is founded, that the executive authority cannot interpose, in any shape, between them and the offender. The main object is to preserve the purity and independence of the legislature, for the benefit of the people. It acts, therefore, on its own power, without reference to, or dependence upon, any other. If the executive authority could, by granting a pardon, or, in any other mode, protect those who insidiously or violently interrupted or defeated their operations, the legislature, which is the superior body, would be so far dependent on the good will of the executive. And it would be only, as it were, by the permission of the latter, that it exercised a jurisdiction of so much importance to the people's rights. The Constitution is as silent in respect to the right of granting pardons in such cases, as it is in respect to the creation of the jurisdiction itself one arises by implication the other is excluded by implication.

In all other than these two cases, the power is general and unqualified. It may be exercised as well before as after a trial, and it extends alike to the highest and the smallest offences. The remission of fines, penalties, and forfeitures, under the revenue laws, is included in it, and in this shape it is frequently exercised: but although it may relieve the party from the necessity of paying money into the treasury, the president cannot, after the money has reached the treasury, compel the restitution of it.

The Constitution no where expressly describes any mode of punishment: it empowers congress in four enumerated cases to provide the punishment. They are treason, piracy, offences against the law of nations, and counterfeiting the securities and current coin of the United States. The power of congress to inflict punishment in other cases is derived from implication only, but it is necessary to carry the Constitution into effect, and is embraced in the general provision to pass all laws which may be necessary and proper. 3 The pardoning power is as extensive as the punishing power, and applies as well to punishments imposed by virtue of laws under this implied authority, as to those where it is expressed. The only exceptions are the two cases we have already mentioned, in one of which the power of pardoning is expressly withheld — and in the other it is incompatible with the peculiar nature of the jurisdiction.

In the exercise of the "benign perogative of pardoning," as it has been justly termed, the president stands alone. The Constitution imposes no restraint upon him by requiring him to consult others. As the sense of responsibility is always strong in proportion as it is undivided, a single man will be most ready to attend to the force of those motives, which ought to plead for a mitigation of the rigour of the law, and less inclined to yield to considerations calculated to shelter proper subjects from its punishment. On the other hand; as men generally derive confidence from their number, they might often encourage each other in acts of obduracy, and be less sensible to apprehensions of censure for an injudicious or an affected clemency. 4

In addition to this objection, there would be a great inconvenience in imposing on the president the necessity of consulting a body, which, whether already a permanent part of the government as the senate, or specially created for the purpose, it might be difficult to convene on occasions when perhaps an immediate decision would be highly expedient.


1. 4 Blackstone, 397. Montesquieu, b. 6, c. 5.

2. 4 Blackstone, p. 404.

3. 6 Wheaton, 233.

4. Federalist No. 74.


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