Tuesday, March 28, 2006

Power of Pardon

In a post at "Prosblogion," Theological Determinism and Supererogatory Salvation, on which I have been doing some commenting, there has been an interesting discussion of supererogation. (One of my arguments is that sets of supererogatory acts may be suberogatory. To put it in other terms, the inference from 'Doing A is supererogatory, Doing B is supererogatory, etc.' to 'Doing both A and B is supererogatory' is illegitimate. It commits the fallacy of composition, or something like it.) In the context of this discussion, I brought up the csae of executive power to pardon, which is a case of legal supererogation: the executive is not duty-bound to pardon anyone, but is free to use the power to pardon at his best discretion to preserve and further the common good. So I've been doing some reading on the legal power to pardon. I haven't found much that's actually relevant to the particular discussion at "Prosblogion," but I have found some interesting passages on the role of mercy in a justice system. Here are three historical examples by top-notch thinkers in the field of jurisprudence:

William Blackstone on the power of pardon:

This is indeed one of the great advantages of monarchy in general, above any other form of government; that there is a magistrate, who has it in his power to extend mercy, wherever he thinks it is deserved: holding a court of equity in his own breast, to soften the rigour of the general law, in such criminal cases as merit an exemption from punishment. Pardons (according to some theorists) should be excluded in a perfect legislation, where punishments are mild but certain: for that the clemency of the prince seems a tacit disapprobation of the laws. But the exclusion of pardons must necessarily introduce a very dangerous power in the judge or jury, that of construing the criminal law by the spirit instead of the letter; or else it must be holden, what no man will seriously avow, that the situation and circumstances of the offender (though they alter not the essence of the crime) ought to make no distinction in the punishment.

Alexander Hamilton on the power of pardon:

Humanity and good policy conspire to dictate, that the benign prerogative of pardoning should be as little as possible fettered or embarrassed. The criminal code of every country partakes so much of necessary severity, that without an easy access to exceptions in favor of unfortunate guilt, justice would wear a countenance too sanguinary and cruel. As the sense of responsibility is always strongest in proportion as it is undivided, it may be inferred that a single man would be most ready to attend to the force of those motives, which might plead for a mitigation of the rigor of the law, and least apt to yield to considerations, which were calculated to shelter a fit object of its vengeance. The reflection, that the fate of a fellow creature depended on his sole fiat, would naturally inspire scrupulousness and caution: The dread of being accused of weakness or connivance would beget equal circumspection, though of a different kind. On the other hand, as men generally derive confidence from their numbers, they might often encourage each other in an act of obduracy and might be less sensible to the apprehension of suspicion or censure for an injudicious or affected clemency. On these accounts, one man appears to be a more eligible dispenser of the mercy of the government than a body of men.

James Wilson on the power of pardon:

The most general opinion, as we have already observed, and, we may add, the best opinion, is, that, in every state, there ought to be a power to pardon offences. In the mildest systems, of which human societies are capable, there will still exist a necessity of this discretionary power, the proper exercise of which may arise from the possible circumstances of every conviction. Citizens, even condemned citizens, may be unfortunate in a higher degree, than that, in which they are criminal. When the cry of the nation rises in their favour; when the judges themselves, descending from their seats, and laying aside the formidable sword of justice, come to supplicate in behalf of the person, whom they have been obliged to condemn; in such a situation, clemency is a virtue; it becomes a duty.

But where ought this most amiable prerogative to be placed? Is it compatible with the nature of every species of government?

...Why, according to Sir William Blackstone, can the power to pardon never subsist in a democracy? Because, says he, there, nothing higher is acknowledged, than the magistrate, who administers the laws. By pursuing the principle of democracy to its true source, we have discovered, that the law is higher than the magistrate, who administers it; that the constitution is higher than both; and that the supreme power, remaining with the people, is higher than all the three. With perfect consistency, therefore, the power of pardoning may subsist in our democratical governments: with perfect propriety, we think, it is vested in the president of the United States.


(Blackstone and Hamilton presumably need no introduction; but Wilson might. James Wilson, born in Scotland in 1742 or so, was a lawyer who signed the Declaration of Independence for Pennsylvania; he was one of the first Supreme Court justices, and served on the Court until his death in 1798. Brilliant in the field of government and constitutional law, he seems to have been incompetent in practical matters, and was continually having problems with debt -- he even served time, while on the Supreme Court, in debtor's prison.)

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