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
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
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
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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