By Albert Barnes| Chapter One | Chapter Three |
Difficulties on the Subject of Pardon
IN the administration of law, few subjects have been found more difficult than that of pardon. It has been assumed in all governments that law would be violated; and in all, or nearly all, it has been assumed that there would be cases in which it would be proper that the penalty of the law should not be inflicted. In most governments where there is a constitution, provision has been made for the exercise of pardon in the constitution itself; and it has become a settled and well understood maxim, in administering the government, that cases may be expected to occur where it would be proper to exercise the pardoning power. There have been, indeed, absolute tyrants who never showed mercy to offenders; but there has been no government, founded on a constitution, where it has been an established principle that pardon is in no case to be extended to the guilty.
An atonement is founded on the fact that men are sinners, or transgressors of law, and on the fact that there are difficulties in the way of pardon which cannot be overcome but by some such arrangement as that which is implied in an atonement.
The difficulties in the way of pardon must be substantially the same in the divine administration as in a human government. It is proper, therefore, to inquire what those difficulties are:—
Those difficulties are such as exist in the following cases. 1. If pardon should never be extended to the guilty, or if the penalty of the law should be always rigidly executed. 2. If it is often extended to the guilty, or if there is a frequent exercise of the pardoning power. 3. If it should always be extended to the guilty, or if the penalty of the law were never inflicted; and 4. In any and every case where pardon is extended by one—as in this respect he must be—above the courts of law, in its bearing on the regular administration of justice.
1. If pardon should never be extended to the guilty, or if the penalty of the law should be always rigidly executed. It has never, indeed, as already remarked, been assumed in any government that this was to be a settled principle, however tyrants may in some cases have acted on it. But it is clear that it might be assumed; and it is proper, in the consideration of the subject, to inquire what consequences would follow if it should be assumed and acted on.
The government in such a case would be one of severe and unrelenting justice. It would be, if such a thing could be secured, a government of perfect law, or a perfect administration of law. The principle would be that an equal and exact penalty for the violation of law should be specified; that the exact amount of criminality should be ascertained; that there should be no improper influence exerted on the mind of a judge or jury; that a just sentence should be in all cases pronounced; and that the law should always be suffered to take its course.
It is easy to conceive that there might be such a government,—a government which would be so severely and exactly just, that, in this respect, there could be no ground of complaint against it. Every rule of law might be observed; every proper degree of care be taken that the exact nature of the offence might be determined; every reasonable precaution might be resorted to in the admission of evidence; every desirable security for a just trial might be granted to an accused person; all that has been regarded as valuable, and that is valuable, in securing the rights of men accused of crime, might be maintained; all that has been worked out in the progress of society, now regarded as so essential to justice and as such inestimable safeguards for true liberty, in the trial by jury, in the writ of habeas corpus, in a public trial, in knowing the charge alleged, in confronting witnesses, in the right of cross-examination, might be so observed that on none of these accounts could there be a ground of complaint. Nor in reference to the sentence might there be a just ground of complaint. It might be neither more nor less than was prescribed by the law, neither more nor less than exact justice demanded. And, moreover, the law might be administered with the utmost tenderness on the part of the officers of justice. Every thing might be done in the trial to protect the rights of the accused; every thing might be humane in the execution of the sentence. Neither a Scroggs nor a Jeffreys, it may be supposed, would ever preside on the bench, and the law might always be administered with more than the purity and kindness of a Hale.
But, if it were an admitted principle that pardon was never to be extended to the guilty, that principle would be at war with some of the finest feelings of our nature; for there is a law of our nature which requires that pardon should in some instances be extended to the guilty. We are so made that we cannot but feel that this is desirable and right. We ourselves are prompted by our nature, as well as by the precepts of revelation, to forgive an offender; and there is a demand in the very constitution of our souls which is not met if this is never done. Upright, and firm, and just, as a man may be, yet we feel that there is a defect in his character if he is only upright, and firm, and just, and that, however we may confide in him where questions of right are involved, he is nevertheless a man who cannot be loved. The same would be true in a government. However just and equal it might be in its decisions, and however impartial it might be in its administrations, it would, if pardon were never exercised, drive its decisions over some of the finest feelings, and be in conflict with some of the noblest impulses of our nature. For there are cases where pardon is desirable and proper; cases in which—whatever care may have been manifested to secure the ends of justice, whatever impartiality may have been evinced on the trial, whatever indulgence may have been shown to the convicted man, and whatever may have been the justice in the verdict of a jury—it is proper that there should be an interposition of the pardoning power to arrest the execution of the law. Under every constitutional government, or every government of law, men have been convinced of this, and accordingly the pardoning power has been lodged either with the executive or the judges. This provision has been found under all governments but those of tyrants; and a government where this provision was not found would be, in the nature of the case, the government of a tyrant. Moreover, this has been, more than any thing else in the administration of the laws, a matter of discretion. How many may be pardoned, under what circumstances, with what manifestations of feeling on the part of the guilty, with what promises or pledges, express or implied, if any, and with what expressions of sympathy or appeals for pardon on the part of the community in behalf of the guilty, if any, have all been points beyond the control of the law. How much or how little of these shall be requisite to secure the favorable intervention of the pardoning power, has been a point which the law has never attempted to prescribe.
That there is a deep feeling in the nature of man which demands that the pardoning power shall be exercised in some cases, is apparent from the ease with which petitions can be procured in any community in cases where the exercise of the law, though strictly just, has been regarded as too severe. This, though sometimes, is not always, mawkish sentimentalism; nor is it always, though it often may be, based on an unwillingness that punishment should ever be inflicted. It lies deeper than this. It is the manifestation of a law of our nature. It arises from the fact that we have been endowed with the emotions of sympathy and compassion as well as with a stern sense of justice.
There are cases where every benevolent feeling of a community, however resolute that community might be in the demands of justice, and however deep its convictions might be that the law should be sustained, would be gratified by the exercise of mercy, and where every feeling of that community would be outraged if such clemency were never shown. Such cases are too well known to require a distinct specification. The considerations which appeal to a community in such cases are those which are derived from the great age, or the tender age, or the sex, of the guilty; from the circumstances of temptation under which the crime was committed; from the want of education or the mental feebleness of the criminal; from the fact that a family may be dependent on him; from the impaired health of the prisoner; from the belief that the ends of justice may be secured by the mere fact of his condemnation without inflicting on him the sentence; from the conduct of a prisoner after conviction, and the belief that he has so reformed that it may be safe to restore him again to his family and to the community; perhaps from the former public services of the guilty man. In all such cases it is left for the executive to judge as to the propriety of remitting the sentence of the law; in reference to such cases it would be an outrage on all the finer feelings of our nature if there were to provision to meet them and if the law was always inexorably to take its course.
It follows from this that in a government in which there was no provision for pardon in any case, though it might be strictly just, and though it might in this respect deserve the confidence of mankind, it would violate some of the noblest principles that have been implanted in the soul of man.
It would contemplate man not as he is, but as a being destitute of compassion, sympathy, and kindness. It would regard him not as possessing, in connection with a sense of justice, a feeling of humanity, but as endowed with a mere sense of justice, stern, severe, inexorable.
But this is not man; this is not society. Man has been formed in a different manner, and society is made up of different materials. There are in the bosoms of individual men and in society different elements; and none of them can be safely disregarded even in the strictest administration of law. Man, individual or associated, is not all intellect, nor is his only characteristic that of a stern sense of justice. He has a heart as well as a head, and there is in his bosom a sense of humanity as well as a sense of right. There are demands in his nature for the exercise of sympathy and forgiveness as well as for the exercise of justice and the maintenance of law; and a government, a court, or an individual, where these are ignored or disregarded, violates some of the noblest principles of our nature and some of the most important arrangements of the Creator. This feeling of our nature _ this demand for the exercise of sympathy, compassion, and forgiveness, has led to the conviction already adverted to, that there should be, in all human governments, some arrangement for the remission of the penalty of the law in certain cases, or to the conviction that the law should not in all instances be rigidly and sternly executed, and is the reason why a power of pardon has been lodged in the hands of the executive or the judges.
May it not be added also, since God has implanted this feeling so deeply in the human soul, and made the manifestation of it so essential to the good of society, that it may be inferred that it is a principle in his own nature and in his own administration? Would he make necessary in a human government a principle which has no place in his own? Would he implant in the human soul what has no counterpart in his own nature? Can we suppose that his nature is severely and sternly just, with no elements of sympathy, when he has made compassion so essential a characteristic in the soul of man, and its exercise so indispensable to the welfare of society? And can we avoid, from this consideration, the inference that there will be found in his nature a disposition to pardon, and that there will be found somewhere in his administration an arrangement for the exercise of mercy? As man individually is in some proper sense made in the image of God, and as man associated with his fellow-man for purposes of government represents in some proper sense the administration of the Great Governor of the universe, it may be inferred that a counterpart of what is so essential to the character of the individual here, and of what is made so necessary in all forms of human administration, will be found to exist in the character of the Creator himself, and be manifested in a perfect form under his administration.
2. A second difficulty in regard to the manifestation of mercy in a human administration occurs if pardon is often extended to those who are guilty. There have been, and there are, forms of administration where this in fact occurs. Either from a slight sense of the obligations of justice in a community, or from lax views of the nature of law, or from a mawkish sensibility in regard to punishment, or from false forms and views of humanity, or from weakness, instability, a feeble sense of right, and a false compassion in an executive, it sometimes occurs that 'pardons' are greatly multiplied, and that the conviction of a guilty man constitutes scarcely the slightest evidence that the sentence of the law will be executed. The decisions of courts are set aside on the slightest considerations, and men guilty of atrocious and admitted crimes are turned unpunished and unreformed again upon the community. The evils of this are too obvious to need illustration.
But there are cases, as has been before remarked, where the interposition of the pardoning power seems to be demanded by the circumstances of the case, and by the appeals to that law of our nature which prompts to the exercise of mercy; cases where the rigid sentence of the law would be too severe, or where there were mitigating circumstances in the commission of the offence, or where the conduct of the convicted man seems to furnish evidence that all the desirable ends of conviction have been obtained, and where it may be hoped that a permanent reformation has been secured, or where the reason or the health of the prisoner is endangered, and humanity seems to demand that he should be released, and that a heavier infliction than that contemplated by the law _ the loss of reason, or death in the prison _ should not come upon him. In these circumstances, as has been remarked before, all the promptings of our nature demand that the pardoning power should be exercised, and all the benevolent feelings of a community are gratified by the exercise of executive clemency.
And yet pardon, under any circumstances, always does much to weaken the strong arm of the law. It is a proclamation that crime may, in certain circumstances, be committed with impunity.
It is an announcement to offenders that they have a double hope of escaping punishment _ a hope that they will not be detected and convicted, and then a hope that if they are convicted they may, like others, be partakers of the executive clemency. It is manifest that this feeling will exist just in proportion to the frequency with which the pardoning power is exercised. Every guilty man discharged from prison becomes thus a messenger sent into the community _ and especially into the community of thieves, robbers, pirates, and murderers _ to announce that crime may be committed with impunity; that the law is not rigid and inexorable in its inflictions, and that little is to be apprehended from its threatenings. And it is to be observed, further, that the effect of one act of pardon will be more deep and widespread than the effect of the continued punishment of a large number of the guilty. The imprisoned or executed convict is in a great degree forgotten. If imprisoned, he is confined to a cell to which the community has no access. The memory of his trial and of his conviction passes out of the public recollection. He is not seen, except by his keeper, by his chaplain, and by a few of his friends. By a refinement, too, in modern prison-discipline, whether wise or not is not now the inquiry, his very name is concealed, and he is only numerically designated. Between him and his fellow-prisoners, as far as possible, all communication is interdicted. His place in the community is forgotten, and every tie that bound him to the living world is sundered. As far as it is possible, even in the infliction of the punishment, his person, his name, his very existence, are forgotten. He is dead to law, dead to his family, dead to the community. And when the time for which he was committed to prison is expired, if it does expire, and if he does not die in his cell, unpitied, unreformed, and forgotten, all possible care is taken to obliterate the memory of his name, of his crime, of his trial, and of his imprisonment, and to restore him, with no recollection of his offence, and no suspicion on his character, to the community. Often he goes to a place where he is unknown, and where, his name having been concealed or being changed, every trace of his conviction and his punishment is obliterated. And if, in the other supposed case, he is executed for his crime, the memory of that also soon dies away. The terror or the attractiveness of the scene of execution is over; the public sympathy, and with it the public interest in him, is exhausted; a portion of the community feel that he died justly, and lose all interest in him; and on the other and the larger portion no impression favorable to law and virtue was made by his death: he passes out of the sight of the living and out of the memory of mankind.
But not such is the case with a pardoned man. No attempt is made to conceal the interest which is felt in him in securing the arrest of the penalty of the law in his case. A deep public sympathy is excited in his favor; the names of the respectable, the virtuous, and the pious are easily obtained to a petition for his pardon; he acquires a degree of publicity and of popularity which could never have been his if he had been a virtuous man; no attempt is made to conceal his name, and he is restored to the community as a public proof that crime may be committed with impunity, that there are cases where the regular sentence of the law is too severe and where humanity should be allowed to triumph over justice. Every instance of this nature becomes such a proclamation; and, while the influence of a trial and a conviction in favor of the claims of justice may be forgotten, the influence of the pardon, as operating against the claims of justice, will not soon die away. Just in proportion as such instances are multiplied do they operate to weaken the strong arm of the law, and to proclaim to the community that the law may be violated with impunity.
This effect it has never been possible to prevent in a human administration by any safeguards or checks; nor is there any way in which it can be done. No practicable devices have been found to arrest or counteract the natural effect of a frequent exercise of the pardoning power in rendering the administration of justice weak and ineffectual, and in furnishing an encouragement for the commission of crime.
3. This result would be still more disastrous if pardon were always extended to the guilty, or even if it were proclaimed that pardon could, by any arrangement, be extended to all the guilty.
In such a case, what would be the use of the forms of law, of the arrest, indictment, and trial of the guilty, of the verdict of a jury, of the sentence of a judge? If in each and every case of such trial there were present in the court-room an officer of the executive intrusted with pardoning power, or if an instrument of pardon were made out and executed before the trial, or if a blank form of pardon, properly signed and sealed, were always at hand ready to be filled up with the name of the man whom a jury should find 'guilty,' or if it were certain that a pardon would be granted, it is evident that the whole process of trial would be a farce and the sentence of the law a bugbear.
Further: in no community would it be safe to have all the prison-doors unbarred and the whole multitude of convicts thrown upon the world. Who, in such a case, in the neighborhood of a crowded prison would sleep calmly at night? Who would feel for a moment that his property was secure? Who would feel that his house and home were safe? That his wife and children could lie down secure? There could be no arrangement by which such a general jail-delivery could be rendered consistent with the safety of society. No one would wish to live in the vicinity of such a prison. Property would become valueless and the place would become a desert; and though the vast and terrific power of thus discharging all the imprisoned convicts in a community has been intrusted to the executive in each commonwealth, yet it never has been exercised, nor has it ever been contemplated that it should be or could be. There is no community in which it would be safe to have all prisons thrown open and all the inmates discharged; nor are there any arrangements in the power of man by which this could be made safe. If it had ever been contemplated that an executive would thus throw open all the doors of prisons, the pardoning power would never have been granted; if such a case ever should occur in a community, that power would be at once withdrawn. At present society is protected from this evil by general public opinion, and it has not been found necessary to provide any special checks against the exercise of the pardoning power; but if it should be abused in the manner above supposed, the community would find it necessary at once to provide some suitable and effectual restraints against the possibility of an occurrence that would render nugatory all the existing arrangements for the administration of justice, and endanger every thing that is sacred and valuable in a commonwealth.
Moreover, no community would regard it as safe to offer pardon to all criminals on any condition whatever. The offer of pardon is, indeed, not now made to any one, and the hope of pardon in any case is derived only from the fact that the pardoning power is lodged with the executive, the judges, or the legislature, and from the fact that it is so often exercised as to constitute the basis of a hope that it may be exercised in other cases also. But it is never offered to any one. It is never made avowedly dependent on any conditions of penitence, of reformation, or of pledges for future good behavior. If these things become considerations on the ground of which pardon is extended to the guilty, it is not because it is offered on these conditions, or because they could be safely made conditions of pardon, but because in such cases they may have their influence on the minds of those who are intrusted with the pardoning power. But there can be no doubt as to what would be the effect if pardon were indiscriminately offered to all criminals on any conditions whatever. Forthwith all prisons would be filled with hypocrites and pretenders, in whose bosoms there would be no real reformation, but who would assume the appearance of reformation until the pardon was obtained. There could be no security for future good behavior; there could be no infallible proof of genuine reformation; there could be no ground of reliance that all the indications of compliance with the conditions were not hypocritically assumed for the purpose of obtaining a discharge from prison. No civil government has the power of originating an influence that shall be extended into the future life of the convict, and that shall become the guarantee that the community will suffer no wrong by the indiscriminate discharge of the guilty on the profession of repentance and reformation.
There is not a government on earth that could safely venture to make the unlimited offer of pardon which God in the gospel makes to guilty men. There it is unlimited. It is on simple conditions, conditions that may be easily complied with by all. Interwoven with those conditions there is a security for the future good conduct of those who are pardoned; a guarantee to the universe that no wrong would be experienced if even all the guilty should be pardoned. That offer of pardon excludes none even by name, none by description. No man is presumed to be so great an offender, to have committed crimes of so aggravated a character against God and his law, to be so powerful or so dangerous, that it would be unsafe to forgive him. In every case, no matter how great the crimes have been, it is presumed that an influence pervades the arrangement for pardon which will secure ever onward the future good conduct of him who is forgiven, and that he who has been most distinguished for crime will hereafter be as eminent for obedience to the law. What those arrangements are, will be the subject of subsequent consideration. The remark now made is that it has been impossible thus far in the world to introduce those arrangements into human legislation, and that, consequently, there has been no community where a universal offer of pardon could be made to the guilty; no commonwealth where it would be safe to throw open all prison-doors and to discharge all convicts upon the world.
4. There is another difficulty on the subject of pardon which must occur in a human administration whenever, and with whatever precautions, it maybe exercised. It is, that it sets aside the decisions of the courts, and, by diminishing confidence in their wisdom, lessens their influence in the administration of the laws. Every act of pardon is, as far as it goes, a proclamation either that the law itself is defective, or that there has been an error in its administration. It is a public statement that there is no tribunal which can be always confided in; that there is need of a higher power to sit again in judgment on the highest decisions of the law, and perhaps to reverse them. And it is not merely a rehearing of the case, as in a court of error, where all the forms and securities of law may be observed; but it is a rehearing where the precautions which the law has thrown around the administration of justice in the arraignment, the indictment, the trial by jury, the examination of witnesses, and the pleadings in the cause, are dispensed with, and where, in most instances, the case is left, without these forms of security, to the decision of a single man. Practically the judgment of the court and the decisions of the law are declared to be wrong. Nothing is done to assert the authority of the court or to maintain the influence of the law while the guilty man is discharged, and two branches of the government _ the judicial and the executive _ come directly into conflict. In every case of pardon it may be supposed that all executive would desire to maintain the authority of law as administered in the courts of justice, and from this consideration, if there were no other, would hesitate to interpose; for the executive never cannot interpose without practically doing so much to set aside the authority of the law and the regular course of justice. It is to be observed, also, that it has cost much, in the progress of society, to secure an arrangement by which justice may be dispensed, and that it is of the highest importance to maintain the authority of courts of law. There is value in all the arrangements and the processes of justice; in the appointment of judges, in the modes of indictment, in the trial by jury, in the forms of pleading, in the respect shown to the sentence of a court. All these bear directly on the interests of a community; all are to be regarded as safeguards of justice; all are results of long struggles in past ages for the protection of rights; and all go into the sense of security which a community feels in reference to the nature of citizenship.
Each one of the arrangements which now enter into the administration of justice has been the result of a long and fearful struggle in the history of the world, or has, in its establishment, constituted an epoch in the progress of society; making a marked distinction between society as it was before, and as it is afterwards. So it was with the establishment of trial by jury in the time of Alfred; with the rights secured by the barons in the Magna Charta; in the writ of habeas corpus in the time of Charles II; in the abolition of the Star Chamber; in the arrangements by which an indictment shall be found by a jury before trial; in the points established after so long a conflict, that the accused shall meet his accuser face to face, and that the witnesses shall be examined in open court; in the independence of the judges, and in the forms of pleading. The progress of society has been marked by the establishment of these and similar arrangements from age to age: and there is not one of the arrangements now seen in a court of justice which has not in its introduction constituted an epoch in the progress of the world, and been the result of a severe and protracted struggle against oppression and wrong.
It is of the highest importance to the interests of a community that the arrangements which have been found necessary in the administration of law should be sacredly observed; and yet all are practically set aside in every case of pardon, for in every such case an interference is allowed which is protected by none of these safeguards. The interference goes to show that, so far as this case is concerned, the respect which it is so desirable to maintain for courts of law is to be set aside.
It is, in fact, an arrangement where there is no proper respect for law or for the regular administration of law under the safeguards secured in the wisdom of past ages.
Such are some of the difficulties on the subject of pardon; difficulties which occur inevitably if pardon is never exercised, if it is often exercised, or if it should be always extended to the guilty.
These difficulties it has never been in the power of any human wisdom to overcome; and, whichever of these courses has been adopted, evil has always resulted under every form of human administration. No way has been discovered of so adjusting these points as to make the exercise free from difficulty. There has been some defect in the practical working of every system; something wanting which it has never been in the power of a human legislator to introduce into his scheme.
There has been everywhere a deep conviction that pardon should in certain cases be extended to the guilty; but how it can be done so as to secure the interests of justice, so as to maintain the power of law, and so as not to be an encouragement for the commission of crime, is a point which has never been settled in any human administration.| Chapter One | Chapter Three |