The Online Library of Liberty

A project of Liberty Fund, Inc.

• Introduction to the Third Edition.
• On Civil Liberty and Self-government.
• Chapter I.: Introductory.
• Chapter II.: Definitions of Liberty.
• Chapter III.: The Meaning of Civil Liberty.
• Chapter IV.: Ancient and Modern Liberty.—Ancient, Medieval, and Modern States.
• Chapter V.: Anglican Liberty.
• Chapter VI.: National Independence—Personal Liberty.
• Chapter VII.: Bail.—Penal Trial.
• Chapter VIII.: High Treason.
• Chapter IX.: Communion.—Locomotion, Emigration.
• Chapter X.: Liberty of Conscience.—Property:—Supremacy of the Law.
• Chapter XI.: Quartering Soldiers.—The Army.
• Chapter XII.: Petition.—Association.
• Chapter XIII.: Publicity.
• Chapter XIV.: Supremacy of the Law.—Taxation.—Division of Power.
• Chapter XV.: Responsible Ministers.—Courts Declaring Laws Unconstitutional.—Representative Government.
• Chapter XVI.: Representative Government, Continued.—Basis of Property.—Direct and Indirect Elections.
• Chapter XVII.: Parliamentary Law and Usage.—The Speaker.—Two Houses.—The Veto.
• Chapter XVIII.: Independence of the Judiciary.—The Law Jus, Common Law.
• Chapter XIX.: Independence of Jus, Self-development of Law, Continued.—Accusatorial and Inquisitorial Trials.—Independence of the Judge.
• Chapter XX.: Independence of Jus, Continued.—Trial By Jury.—The Advocate.
• Chapter XXI.: Self—Government.
• Chapter XXII.: American Liberty.
• Chapter XXIII.: In What Civil Liberty Consists, Proved By Contraries.
• Chapter XXIV.: Gallican Liberty.—Spreading of Liberty.
• Chapter XXV.: The Institution.—Its Definition.—Its Power For Good and Evil.
• Chapter XXVI.: The Institution, Continued.—Institutional Liberty.—Institutional Local Self-government.
• Chapter XXVII.: Effects and Uses of Institutional Self-government.
• Chapter XXVIII.: Dangers and Inconveniences of Institutional Self-government.
• Chapter XXIX.: Advantages of Institutional Government, Farther Considered.
• Chapter XXX.: Institutional Government the Only Government Which Prevents the Growth of Too Much Power.—Liberty, Wealth, and Longevity of States.
• Chapter XXXI.: Insecurity Op Uninstitutional Governments.—Unorganized Inarticulated Popular Power.
• Chapter XXXII.: Imperatorial Sovereignty.
• Chapter XXXIII.: Imperatorial Sovereignty, Continued.—Its Origin and Character Examined.
• Chapter XXXIV.: Centralization.—Influence Of Capital Cities.
• Chapter XXXV.: Vox Populi Vox Dei.
• Appendix.
• Appendix I.: A Paper On Elections, Election Statistics, and General Votes of Yes Or No.
• Appendix II.: A Paper On the Abuse of the Pardoning Power.
• Appendix III.: A Paper On Subjects Connected With the Inquisitorial Trial and the Laws of Evidence.
• Appendix IV.: Magna Charta of King John, Fifteenth Day of June, In the Seventeenth Year of the King's Reign, A.d. 1215.
• Appendix V.: The Petition of Right. 1
• Appendix VI.: An Act For the Better Securing the Liberty of the Subject, and For Prevention of Imprisonments Beyond the Seas, Commonly Called “the Habeas Corpus Act.” 1
• Appendix VII.: Bill of Rights, Passed 1 William and Mary, Sess. 2, Ch. 2, 1689.
• Appendix VIII.: A Declaration By the Representatives of the United States of America In Congress Assembled.
• Appendix IX.: Articles of Confederation and Perpetual Union Between the States.
• Appendix X.: Constitution of the United States of America.
• Appendix XI.: The French Constitution, Adopted and Proclaimed On the Twenty-fourth of June 1793. the First Republican Constitution
• Declarations of the Rights of Man and of Citizens.
• Constitution of the Twenty-fourth of June, 1793.
• Appendix XII.: French Charter of Louis XVIII. And That Adopted In the Year 1830.
• Appendix XIII.: Constitution of the French Republic. Adopted November, 1848.
• Appendix XIV.: The Present Constitution of France.
• Appendix XV.: Report of the French Senatorial Committee On the Petitions to Change the Republic Into an Empire, In November, 1852, 1 and the Senatus-consultum Adopted In Conformity With It.
• Appendix XVI.: Letter of the French Minister of the Interior, Mr. De Morny, Addressed to the Prefects of the Deparments In the Year 1852.

APPENDIX II.

a paper on the abuse of the pardoning power.

This paper was originally a report. I had been appointed by a meeting of the Friends of Prison Discipline, without being present, the chairman of a committee, which was requested to report to the next meeting on “The Pardoning Privilege and its Abuse.” The following was the result of this appointment. The legislature of the State of New York did me the honor of publishing it as a document; but it was printed so incorrectly, the subject is of such vital interest to a people who desire to live under the supremacy of the law, and the abuse continues in many parts of our country to so alarming an extent, that I do not hesitate here to reproduce the paper.

The pardoning privilege consists in the authority partially or wholly to remit the penalty which, in the due and regular course of justice, has been inflicted for some offence. A pardon is always an act of frustrating that common justice which has been established by law as the best means of protection; a nullification of legal justice. It is the only power in modern politics, in which the supremacy of the law is acknowledged as the primary condition of liberty, that can be compared in any degree to the veto of the ancient tribune.1 It is an irregular power, depending upon irresponsible individual will. We ought, therefore, clearly to be convinced of its necessity; and if this can be proved, we ought to inquire whether so extraordinary a power must not be guarded by proper limitations, especially if it should be found that it is liable to be seriously and even alarmingly abused.

In order to understand more fully the whole subject, it will not be amiss if we endeavor to obtain a view of the origin of this power, and to see why it is that everywhere we find it as an attribute of the chief executive power; whether this fact must be attributed to any inherent characteristics, or to incidental circumstances.

When all government is yet mixed up with the family relations, and the individual views of the ruler alone prevail, he pardons, as a matter of course, whenever he sees proper and feels impelled so to do; but developed despotism over extensive states takes a different view. Fear of insecurity and suspicion of disobedience to the commands of the despot often lead the ruler to fence himself in with a strict prohibition of applications for pardon. That which a wise people does for virtuous purposes by a constitution, namely, the establishing, in calm times, of rules of action for impassioned periods, distrusting their own power of resisting undue impulses, and thus limiting their power, the despot does from fear of his own weakness, and therefore limits his own absolute power that he may not be entrapped into granting a pardon for disobedience. Chardin1 tells us that in his time it was, in Persia, highly penal to sue for pardon for one's self or for another person; the same was a capital offence under the Roman emperors—at least under the tyrants among them, who form the great majority of the fearful list. Still it is clear that the last and highest power, the real sovereign (not only the supreme) power, must include the power of pardoning. As in Athens the assembled people had the right of remitting penalties,1 so does the civil law acknowledge the privilege in the emperor who was supposed to be the sovereign, and acknowledged as the source of all law, Christianity confirmed these views. The mercy of the Deity is one of its chief dogmas; mercy, therefore, came also to be considered as one of the choicest attributes of the ruler, who on the one hand was held to be the vicegerent of God, and on the other, the sovereign source of law and justice; nor can it be denied that, in times when laws were yet in a very disordered state, the attribute of mercy in the ruler, and the right of pardoning flowing from it, was of great importance, and, upon the whole, probably beneficial to the people. The fact that the pardoning power necessarily originated with the sovereign power, and that the rulers were considered the sovereigns, is the reason why, when jurists came to treat of the subject, they invariably presented it as an attribute indelibly inhering in the crown. The monarch alone was considered the indisputable dispenser of pardon; and this again is the historical reason why we have always granted the pardoning privilege to the chief executive, because he stands, if any one visibly does, in the place of the monarch of other nations, forgetting that the monarch had the pardoning power not because he is the chief executive, but because he was considered the sovereign—the self-sufficient power from which all other powers flow; while with us the governor or president has but a delegated power and limited sphere of action, which by no means implies that we must necessarily or naturally delegate, along with the executive power, also the pardoning authority.

Although the pardoning power has always existed, and has been abandoned by ultra-despotism for the sake of despotism itself, yet the abuse to which it easily leads, and the apparent incongruity which it involves, have induced many men of deep reflection, in ancient as well as in modern times, to raise their voices against it: of whom we may mention Plato and Cicero1 among the ancients, and Pastoret,2 Servin, Filangieri, and the benevolent Beccaria among the moderns. The latter, the pioneer of penal reform, and one of the benefactors of mankind, has the following remarkable passage:3

“As punishments become more mild, clemency and pardon are less necessary. Happy the nation in which they will be considered as dangerous! Clemency, which has often been deemed a sufficient substitute for every other virtue in sovereigns, should be excluded in a perfect legislation where punishments are mild, and the proceedings in criminal cases regular and expeditious. This truth may seem cruel to those who live in countries where, from the absurdity of the laws and the severity of punishments, pardons and the clemency of the prince are necessary. It is, indeed, one of the noblest prerogatives of the throne; but at the same time a tacit disapprobation of the laws. Clemency is a virtue which belongs to the legislator, and not to the executor of the laws; a virtue which ought to shine in the code, and not in private judgment. To show mankind that crimes are sometimes pardoned, and that punishment is not a necessary consequence, is to nourish the flattering hope of impunity, and is the cause of their considering every punishment inflicted as an act of injustice and oppression. The prince, in pardoning, gives up the public security in favor of an individual, and by ill-judged benevolence proclaims a public act of impunity. Let, then, the legislator be tender, indulgent, and humane.”

Among the truths of this passage there are some errors, the exhibition of which will at once lead us to the consideration whether the pardoning power, having already been admitted as an extraordinary and super-legal one, be necessary at all in a well and liberally constituted government, or ought to be suffered in a community which acknowledges the sovereignty of the law. Beccaria says that clemency should be excluded in a perfect legislation, and that pardon is a tacit disapprobation of the law. This is erroneous. No legislation can ever be perfect in the sense in which it is taken here, namely, operating in all cases, in the same manner toward exactly the same end, for which the legislator has enacted the law; because the practical cases to which the laws apply are complex, and often involve conflicting laws; because the legislator, though he were the wisest, is but a mortal with a finite mind; who cannot foresee every combination of cases; because the changes of society, things, and relations necessarily change the effect produced by the same Jaws; and because the law-maker cannot otherwise than cast the rules of action, which he prescribes, in human language, which of itself is ever but an imperfect approximation to that which is to be expressed.

Laws cannot, in the very nature of things, be made abstract mathematical rules; and so long as we live on this earth, where we do not see “face to face,” where mind cannot commune with mind except through signs which have their inherent imperfections, cases must frequently occur in which the strict and formal application of the law operates against essential justice, so that we shall actually come to the conclusion that, in a country in which the sovereignty of the laws is justly acknowledged, we stand in need of a conciliatory power to protect ourselves against a tyranny of the law, which would resemble the bed of Procrustes, and would sometimes sacrifice essential justice as a bleeding victim at the shrine of unconditional and inexorable Jaw itself. It is to these cases, among others, that the adage of the jurists themselves applies: Summum jus, summa injuria. We take it then for granted on all hands, that, justice being the great end of all civil government, and law the means to obtain it, the pardoning power is necessary in order to protect the citizen against the latter, whenever, in the peculiar combination of circumstances, it militates with the true end of the state, that is, with justice itself. But it is equally true that the supremacy of the law requires that the extraordinary power of pardoning be wielded in the spirit of justice, and not according to individual bias, personal weakness, arbitrary view, or interested consideration; a truth which is the more important in our country, because the same principles which make us bow before the law as our supreme earthly ruler, also bring the magistrate so near to the level of the citizen that he who is invested with the pardoning power is exposed to a variety of influences, individual and political, which have a powerful, and often, as practice shows, an irresistible effect, although there is no inherent connection between them and the cases to which the pardon is applied—influences, therefore, which in this respect are arbitrary or accidental. All arbitrariness, however, is odious to sterling freedom in general, and the arbitrary use of the pardoning power and its frequency produce the most disastrous consequences in particular.

It unsettles the general and firm reliance on the law, an abiding confidence in its supremacy, and a loyal love of justice.

It destroys the certainty of punishment, which is one of the most important and efficacious elements in the whole punitory scheme; and it increases the hope of impunity, already great, in the criminally disposed, according to the nature of man and the necessary deficiency even of the best contrived penal systems.

It endangers the community, since it is perfectly true what the prince of poets, in his great wisdom, has said:

It interferes most effectually with the wise objects of reform which our penitentiary systems aim at; for all men, practically acquainted with their operation, are agreed that reform never fairly begins in a convict before he has calmly made up his mind to submit to the punishment, and so long as a hope of pardon leads his thoughts from the prison-cell to the anticipated enjoyment of undue enlargement—a phenomenon easy to be accounted for upon psychological grounds.

It induces large numbers of well-disposed persons, male and female, from a superficial feeling of pity, to meddle with cases of which they have no detailed knowledge, and with a subject the grave importance of which has never presented itself to their minds. At times it induces persons to seek for pardons on frivolous grounds, and leads communities to trifle with law, justice, and government.1

It largely attracts to the community, in which the pardoning power is known to be abused, criminals from foreign parts where such an abuse does not exist; it imports crime.

It makes every sentence, not pardoned, an unjust one; for, in matters of state, every act should be founded on right and equal justice.1 No one, therefore, has the right, whatever his power may be, to extend a favor to one without extending it to all equally situated, and, consequently, equally entitled to the favor. The doctrine of Dr. Paley, of “assigning capital punishment to many kinds of offences, but inflicting it only upon a few examples of each kind,” which he actually calls one of the “two methods of administering penal justice,” amounts to revolting monstrosity if practically viewed, and to an absurdity in a philosophical and scientific point of view.

It adds, with the very commonly annexed condition of expatriation, the flagrant abuse of saddling, in an inhuman, unchristian, and unstatesmanlike manner, neighboring communities with crime, to which the people whose sacred and bounden duty it was to punish it were too weak and negligent to mete out its proper reward.2

And it places an arbitrary power in the hands of a single individual, or several individuals, in states where all arbitrary power is disclaimed, and allows them by one irresponsible act to defeat the ends of toilsome, costly, and well-devised justice and legislation, putting the very objects of civil government to naught.

We do not theorize on this subject. All the disastrous effects of the abuse of the pardoning power, whether inherent in the power itself, when unlimited by proper restrictions, or arising out of a state of things peculiar to ourselves, have shown themselves among us in an alarming degree, and are in many parts of the country on the increase.

For the proof of this evil state of things we appeal to every one in our whole country who has made penal matters the subject of earnest inquiry; we appeal to the fact that, for a long series of years, the official reports of persons connected with prisons and penitentiaries, and of legislative committees, have teemed with complaints of the mischievous effects of the pardoning power; we appeal to the daily papers, near and far, and to recent occurrences in one of our most prominent states, where pardons have been granted to blood-stained criminals of the most dangerous, persevering, and resolute sort, without even the least indication of their reform, after a short time of imprisonment, which had already been substituted for capital punishment; we appeal to the statistics, whenever they have been collected, from official documents, on this melancholy subject; and, lastly, we appeal to the presentments of grand juries in several states of our Union, in which the frequency of pardons under some governors has been called by the severe yet merited name of nuisance.

So long ago as the year 1832, Messrs. de Beaumont and de Tocqueville showed, in their work on the penitentiary system in the United States,1 by documents and statistical tables, the frightful abuse of the pardoning power in the United States in general, and the additional abuse, naturally resulting from the circumstances, that pardon is more liberally extended to those convicts who are sentenced to a long period of imprisonment, or for life, than to less criminal persons. We refer especially to the 2d part of the 16th note of the appendix, page 232 of the translation. We are aware that in some, perhaps in many, states of the Union, the pardoning power has been used more sparingly since that time; but it will be observed that there is no security against a return to the former state of things; nor is the effect of pardoning, when it is rare, yet abused in a few glaring cases, which attract universal notice, less injurious; for instance, when the member of a wealthy or distinguished family is pardoned, although guilty of a well-proven heinous crime, or when men are pardoned on political grounds, although they have committed infamous and revolting offences. Such cases have a peculiar tendency to loosen the necessary bonds of a law-abiding and law-relying community, which has nothing else, and is proud of having nothing else, to rely upon than the law.

Many years ago Mr. M. Carey said, in his Thoughts on Penitentiaries and Prisons: “The New York committee ascertained that there are men who make a regular trade of procuring pardons for convicts, by which they support themselves. They exert themselves to obtain signatures to recommendations to the executive authority to extend pardon to those by whom they are employed. And in this iniquitous traffic they are generally successful, through the facility with which respectable citizens lend their names, without any knowledge of the merits or demerits of the parties. Few men have the moral courage necessary to refuse their signatures when applied to by persons apparently decent and respectable, and few governors have the fortitude to refuse.”

To this statement we have now to add the still more appalling fact, which we would pass over in silence if our duty permitted it, that but a short time ago the governor of a large state—a state amongst the foremost in prison discipline—was openly and widely accused of having taken money for his pardons. We have it not in our power to say whether this be true or not; but it is obvious that a state of things which allows suspicions and charges so degrading and so ruinous to a healthy condition of public opinion, ought not to be suffered.1 It shows that leaving the pardoning privilege, uncontrolled in any way, to a single individual, is contrary to a substantial government of law, and hostile to a sound commonwealth.2

A very interesting paper, relating to the subject of pardon, was furnished in the year 1846 by the secretary of state of Massachusetts, and published by the house of representatives of that commonwealth. The paper is, of itself, of much interest to every penologist; but, when we consider that Massachusetts justly ranks amongst the best governed states of our Union, its value is much enhanced; for we may fairly suppose that the abuse of the pardoning power exists in many of the other states in no less a degree. In many, indeed, we actually know it to exist in a far greater and more appalling degree.

From this document,1 we have arrived at the following results:

There were imprisoned in the state of Massachusetts, from the year 1807, inclusive, to the month of February, 1847, in the state prisons, convicted, 3850.

Of these were pardoned, before the term of imprisonment expired, 460. So that of the whole were pardoned 12 per cent., or every eighth convict.

The average time of remaining in prison (of these 460,) compared to the time of their original sentence, amounted to 65 per cent. In other words, they remained in prison but two-thirds of the time of imprisonment imposed upon them by the law of the state.

Of the 460 pardoned convicts, there had been originally sentenced to the imprisonment of ten years, or more, the number of 49. And the time which these convicts had actually remained in prison, compared to the terms of their original conviction, amounts to 60 per cent.; so that a criminal sentenced to ten years, or more, had a better chance of having his imprisonment shortened, than those sentenced to a period less than ten years, in the proportion of about six to seven—in other words, while the less guilty was suffering a week's imprisonment, the prisoners of the darkest dye suffered six days only.

There were committed for life, by commutation of sentence, and still further pardoned at a later period, from 1815 to 1844 inclusive, seventy-five. The average time they actually remained in prison was a fraction over seven years. So that, if we take twenty-five years as the average time, of a sentence of imprisonment for life, we find that they remained in prison but little over one-fourth of the time which had been allotted to them, in consequence of a first pardon, (twenty-five per cent.,) or the executive substituted seven years' imprisonment for death decreed by law. There were altogether, committed for life by commutation of sentence, fifteen. And, as we have seen that five of these were farther pardoned, we find that one-third of the whole were pardoned (thirty-three per cent.) It does not appear how many criminals were sentenced to death, and what proportion thereof had their sentences commuted to imprisonment for life.

The abuse of pardoning in the state of Massachusetts has, however, much decreased during the latter part of the period through which the mentioned report extends; for, according to a table published in the able and instructive third report of the New York Prison Association, 1847, Page 41 of the report of the Prison Discipline Committee, we find that from 1835 to 1846 there was pardoned in Massachusetts one convict of 1,804; while our statement shows that in the period from 1807 to 1846 every eighth convict was pardoned.

We beg leave to copy the chief result of the table just mentioned.1

If we take the above list as a fair representation of the whole United States, we shall find that one convict of 26.33 is pardoned. But we fear that this would not be very correct; nor must it be believed that any average number fairly represents the average mischief of the abuse of pardoning. Although there be but very few convicts pardoned in a given community, yet incalculable mischief may be done by arbitrarily or wickedly pardoning a few prominent and deeply-stained criminals, as the average temperature of a place may turn out very fair at the end of a year, while, nevertheless, a few blasting night-frosts may have ruined the whole crop.

It ought to be kept in mind that, in all calculations of probability, averages must be taken with peculiar caution in all cycles of facts in which an exceptionally high or low state of things produces effects of its own, differing not only in degree but also in kind from the effects which result from the more ordinary state of things. In these cases averages indicate very partial truth only, or cannot be taken as an index of the desired truth at all. The effects of these maxima or minima are not distributive, and being effects of a distinct class there are no facts in the opposite direction to counteract them. This applies to moral as well as physical averages, and before we apply ourselves to averages at all we must distinctly know whether the elements we are going to use stand in the proper connection with the nature of the result at which we desire to arrive.1

The abuse then exists, and exists in an alarming degree. How is it to be remedied?

In trying to answer this question, we would preface that we are well aware that, unfortunately, the pardoning power is in almost all states of our confederacy determined by their constitutions, and cannot be changed without a change of these fundamental instruments. The object of the present paper, however, is not to propose any political measure. We shall treat the subject as a scientific one, and an open question, irrespective of what can or may be done in the different states in conformity with existing fundamental laws. It is necessary, before all, to know what is the most desirable object to be obtained. After this has been done, it will be proper for every one concerned to adopt that practical course which best meets his own peculiar circumstances, and to settle how near his own means allow him to approach the desirable end.

Many vague things have been asserted of the pardoning power by writers otherwise distinguished for soundness of thought, because they were unable to rid themselves of certain undefined views and feelings concerning princes and crowns. Some have maintained that the pardoning privilege can be justified only in the monarchy, because the monarch combines the character of the legislator and executive, while Montesquieu wishes to restrict the right to the constitutional monarch alone, because he does not himself perform the judicial functions. All these opinions appear to us unsubstantial. There is nothing mysterious, nothing transcendental in the pardoning power. The simple question for us is, Why ought it to exist? If it ought to exist, who ought to be vested with it? What are its abuses, and how may we protect ourselves against them?

We have already seen that doubtless the pardoning power ought to exist:

That there is no inherent necessity that it ought to exist in the executive, or in the executive alone:

That a wide-spread abuse of the pardoning power exists, and has existed at various periods:

That the abuse of the pardoning power produces calamitous effects:

That the executive in our country is so situated that, in the ordinary course of things, it cannot be expected of him that he will resist the abuse:

And that the chief abuse of the pardoning power consists in the substitution of an arbitrary use of power or of subjective views and individual feelings, for high, broad justice, and the unwavering operation of the law, which ought to be freed from all arbitrariness.

We know, moreover, that all our constitutions, as well as the laws of England, actually restrict the pardoning power in some cases; for instance, regarding impeachments, or fines to be paid to private parties; and in most of our states the executive is not invested with the right of pardoning treason, which can only be done by the legislature.1 In others, again, the governor has no authority to pardon capital punishment before the end of the session of that legislature which first meets after the sentence of death has been pronounced; and in other states he has only the power of respiting the capitally condemned criminal until the meeting of the legislature. It is obvious that no specific reason has induced our legislators to give the pardoning power to the executive. It was rather left where they happened to find it, or they placed it by analogy, and not in consideration of any intrinsic reasons.1

If it be true that pardon ought to be granted only in cases in which essential justice demands it against the law, or for very specific and peculiar reasons—for instance, if a convict, sentenced to a short imprisonment, is so feeble in health, that, no proper hospital existing, the incidental consequences of imprisonment would be infinitely severer than the law intended the punishment to be,2 (and is not this also a case of essential justice against the law?”)—or because strong suspicions of innocence have arisen after the trial, it is equally clear that pardon ought to be granted after due investigation only, and that this investigation ought to be insured by law.

The pardoning power might be transferred from the executive to the legislature, or to an assembly of judges. We are emphatically averse to either measure. The legislature is composed of members elected to represent a variety of interests and views, all of which ought to have a proportionate weight in the formation of laws; but neither the reasons why nor the objects for which legislators are elected have any connection with deciding upon a question of pardon. If the decision were left at once to the whole assembly, it would be impossible to give that degree of attentive examination to the details of each case which its nature requires, and a party feeling would frequently warp a decision which could be justified only on the ground of the highest and of essential justice. If the case were first given to a committee (as we may imagine a standing committee of pardon), and the legislature were regularly to follow the decision of the committee, the latter step is useless; if the legislature, however, were not to follow implicitly this decision, we have the incongruities just indicated. As to the forming a board of pardon of judges alone, we think the case would be equally incongruous. The business of the judge, his duty, and his habit of thinking, are strictly to apply the law. He is a valuable magistrate only so long as he is a faithful organ of the established law; but, in the case of pardon, the object is neither to make nor to apply a law, but to defeat its operation in a given and peculiar case.

In order to constitute a proper authority, to which the pardoning privilege can be safely intrusted, we ought to organize it so that the following points are well secured:

That a careful investigation of each case take place before pardon be granted:

That the authority be sufficiently strong to resist importunity:

That it contain a sufficient amount of knowledge of the law, its bearing, and object:

That it enjoy the full confidence of the community.

These great objects, it is believed, can be obtained by a board of pardon, consisting of a proper number of members—say nine (in the republic of Geneva it consists of this number), with one or two judges among them, to be appointed by the legislature, with a periodical partial renovation (one-third leaving every three years), and with these farther provisions:

That the board sit at certain portions of the year—say twice:

That certain and distinct grounds must be stated in every petition for pardon; and that, without them, all petitions, ever so respectably and numerously signed, be not received:

That pardon can be granted by the governor only when duly recommended by the board; and must be granted if the board recommend it a second time, after the governor has returned the recommendation with his reasons against it:

That no pardon be recommended without advertising in the county where the convict has lived previous to his imprisonment, and where he has committed his crime, that the board have in view to recommend him to pardon, and without giving proper time to act upon the advertisement:

That no pardon be granted without informing, likewise, the warden of the prison, or prisons, in which the subject of the intended pardon is, or has been, incarcerated, of the intention of the board:

That no pardon be granted without previous inquiry of the court which has sentenced the convict:

And that the reasons of the pardon, when granted, be published.

Without some such guarantees, the pardoning power will always be abused. The advertising of the intention of pardoning will not be mistaken for an extra-constitutional and illegal call upon the county to exercise functions which do not belong to it, and ought not to belong to it, as, in reality, the governor of Ohio (years ago) respited the execution of a criminal guilty of an atrocious murder, informing, at the same time, the people of the county whence the criminal came, that he was desirous of knowing whether they wished the criminal pardoned or not.1

Nor must it be believed that, while we recommend to inform the warden of a prisoner that his pardon is contemplated, we are desirous of countenancing a system of pardon founded upon the good conduct of the convicts in the prison. We consider such a measure inadmissible, for many reasons. It has been tried in France, on a large scale; and the effect was so bad that its own author obtained its abolition, confessing his error.2 What we desire is, that proper information be obtained before a convict be pardoned, and that no imposition take place. It frequently happens that a pardon is obtained by persons unacquainted with the culprit, and a dangerous and infamous man is returned to a community which had the deepest interest in seeing the law take its uninterrupted course.

We think it proper that the executive, thus controlled on the one hand, and protected against importunities on the other, form a party to the pardon, because the actual release must go through his hands.

We doubt not that, if a board of pardoning were established, in a short time a series of fair principles and rules, somewhat like the rules of equity, would be settled by practice, and the pardoning would be far less exposed to arbitrary action.

Totally distinct, however, from the pardoning ought to be kept the restitution of a convict, when innocence has been proved after conviction. It is a barbarous error to confound acknowledgment of wrong committed by society against an individual with the pardoning of a guilty person. Nothing can be pardoned where nothing is to be pardoned, or where the only pardoner is the convict. He is entitled to indemnity, and the process ought even to be called by a different name and differently to be provided for. Not long ago a person sentenced for forgery in England to transportation for a very long period or for life, we forget which, was pardoned after several years' endurance of the sentence, because his innocence had been made patent. Some English papers justly remarked how incongruous a pardon is in such cases, where, in fact, the question is how a great and ruinous wrong committed by society against an individual may be repaired in some degree at least, and as far as it lies in human power. This is an important subject of its own, deserving the most serious attention of all civilized states, but does not fall within the province proper of pardoning.

I append to this paper, besides the additional notes which the reader has seen, the following three items:

The official reports of the attorney-general of Massachusetts show that:

To this must be added the cost of the courts, detective police, rewards, penitentiaries, prison support.

When we speak of the cost of crime in general, we must not only take into account the above items, but also the waste of property by criminals, and the loss of labor, for criminals by profession do not work, therefore do not produce.

The following extract of a speech by Lord Palmerston, secretary for the home department, June 1, 1853, in the commons, is very remarkable. C'est tout comme chez nous. I do not mean our Quakers act thus, but women inconsiderately get up petitions, and are joined by busy religionists. Lord Palmerston said:

“That would be a very great evil, were any change of the law to bring it about. But let us see how the thing would work. Even now, in cases of disputed rights of property, although it is generally matter of great scruple of conscience to depose to statements which are not consistent with truth, yet we frequently see evidence brought before courts of law not founded in fact. But in matters regarding life and liberty, I am sorry to say that benevolent individuals have very little conscience at all. ('Hear!' and laughter.) You may depend upon it that I have had too much experience of the truth of what I have stated. I get applications signed by great numbers of most respectable persons in favor of individuals with regard to whose guilt there can be no possible doubt, or any doubt that they have committed the most atrocious crimes. That is a matter of every-day occurrence. Not long ago, a member of the Society of Friends actually tried to bribe a witness to absent himself from the trial of a prisoner, in order to screen the man from punishment, of whose guilt no human being could doubt. If you had these second trials, you would have these pious frauds as frequently committed.”

Lastly, I would put here a short newspaper paragraph—very simple yet very fearful.

“In the course of an editorial article, intended to show that it is the certainty, and not the severity, of punishment which is needed for the suppression of crime, the Pittsburg Commercial makes the following statement:—1

“'In fifteen years, during which the annals of crime in this county have been stained by more than fifty murders, a single instance of hanging has been affirmed by the executive as the measure of extreme penalty due; and there justice was cheated of her victim by suicide!'”

[1.]An inaccuracy of terms has in the case of the veto power created much confusion. The ancient tribune had the privilege of vetoing, and, a so-called vetoing power being ascribed to the chief magistrate of modern constitutional states, people are apt to confound the two, and attack or defend them on common grounds. Yet the two differ materially. The Roman tribune [could prevent the passage of a law and of a decree of the senate by his intercession or veto, and he could by his auxilium, as the magistrate originally of the plebs, obstruct acts of magistrates judged by him to be adverse to the interests of the plebs, (and afterwards of the populus,) even to the extent of arresting them. This last was their original power, in aid of which their inviolability was of importance.] But the modern veto has nothing to do with the law once passed; it amounts to nothing more than the withholding of one necessary ingredient to pass a bill into a law. In governments where the crown has the concurrent or sole initiative, either house, whose consent is necessary in order to make a law, may be said to have the veto power against the crown with the same propriety with which we call the power, in our president, of withholding his approval a vetoing power. The president can never interrupt the operation of a law once made a law. In the case of pardoning, however, the power actually amounts to a tribunitial veto. There the executive, or whoever may possess the pardoning privilege, actually stops the ordinary operation of the law. A man has been laboriously tried and sentenced according to the course minutely laid down by the law, and another power steps in, not according to a prescribed course or process of law, but by a pure privilege left to his own individual judgment, and says: I prohibit; and the due and regular course of law is interrupted accordingly. This is vetoing power in its fullest sense. See on the Veto, in chap. xvii. pp. 200, 201, 202, of this work.

[1.]Voyage en Perse, London, 1686-1715.

[1.]Demosthenes against Timocrates.

[1.]Cicero in Verrem 7.

[2.]Des Lois Pénales.

[3.]Crimes and Punishments, chap. 46, on Pardons; English Translation, 1807

[1.]At the beginning of 1858 it appeared from certain documents published in California, that a petition to the governor, numerously signed by citizens of Monterey, to pardon one Jose Anastasia, under the sentence of death, claimed the pardon on the ground that Jose was the only fiddler in Monterey that understood properly to play for dancing.

[1.]Lord Mansfield is reported justly to have remarked to George HI., who wished to save the Rev. Dr. Dodd from the gallows, to which he had been sentenced for forgery: “If Dr. Dodd does not suffer the just sentence of the law, the Perreaus may be said to have been murdered.” Holliday's Life of Lord Mansfield, London, 1797, p. 149. The Perreaus were apothecaries of very high standing, but had been hanged for forgery, in spite of the most weighty petitions.

[2.]This unhallowed abuse has been raised into a law by Sir George Grey's Expatriation Law, passed in 1847, according to which convicts who behave well shall be pardoned after the lapse of two-thirds of the imprisonment to which they had been originally sentenced, provided they will leave the country.

[1.]Translated, with many additions, by Francis Lieber, Philadelphia, 1833.

[1.]While these sheets are passing through the press, the papers report that the governor of a large state has pardoned thirty criminals, among whom were some of the worst character, at one stroke, on leaving the gubernatorial chair. What a legacy to the people! Lord Brougham said that the only aim of counsel for the prisoner was to get him clear, no matter what the consequences might be. If all the lawyers acted on this saying, and all the executives as the mentioned governor, Justice might as well shut up her halls, and the people save the expenses which they incur for the administration of justice. It is paying too dear for a farce, which is not even entertaining.

[2.]In some of the worst governments, as those of Charles II., James II., and Louis XV., pardons were sold, but not by the pardoning ruler. It was the mistresses and courtiers who carried on the infamous traffic, though the monarchs knew about it.

[1.]House of Representatives, of Massachusetts, 1846, No. 63.

[1.]While the work was passing through the press, a document, published by the Massachusetts convention to amend the state constitution, reached the writer. It contains “A List of Pardons, Commutations and Remissions of Sentence, granted to Convicts by the Executive of the Commonwealth for the ten years including 1843 and 1852.” Unfortunately, this important paper, which contains the names of the persons, sentences, number of years sentenced, number of years remitted, and the crimes, does not give any classifications, summings-up, or comparisons with the number of sentences and unremitted punishments. It only exhibits the following recapitulation for 10 years from 1843 to 1852:

This paper will doubtless be made the basis of very instructive statistical calculations, and it is greatly to be desired that other states would follow. As it is, I am incapable of giving at this moment any other information. It would require other documents, which I have not about me. My remarks are not intended to reflect on the gentleman who has drawn up the paper; for it appears that the convention ordered the paper on the 18th of June, and on July 5th it was handed in. There was then no time to collect the materials for comparisons such as I have alluded to. What is now most important to know is the sum total of what sentences for what crimes were chiefly remitted or pardoned; for what reasons, what proportion pardons, &c, bear to unremitted sentences; for what crimes and what duration these sentences were inflicted; of what countries the pardoned, &c., convicts were; and what proportion the pardoned, &c., short sentences bear to pardoned, &c., long sentences or death.

[1.]A few examples may illustrate the truth too often forgotten: No farmer can determine the fitness of a given climate for the culture of a certain plant from the mean heat of the summer or the mean cold of the winter; for the mean heat does not indicate whether the weather is uniform or violently changeable; the mean interest at which money may have been obtainable in the course of the year does not indicate the truth, unless we know that it has not been pecuhaily low at some periods and extraordinarily high at others; the general criminality of a community cannot be calculated from the percentage of crime, unless we know that there has not been a peculiarly disturbing cause: for instance, one man who has murdered half a dozen of people in a comparatively small com munity; and the mischief produced by pardons cannot be calculated by the average percentage alone, if we do not know that among these pardons there were not some peculiarly arbitrary or peculiarly hostile to the ends of justice. A wholesale pardon may be warranted by the truest principles, and a single arbitrary pardon may shock the whole community.

[1.]The Constitution of the late French Republic of 1848 has this provision:

“Art. 55. He (the president of the republic) shall possess the right of pardon, but he shall not have the power to exercise the right until after he has taken the advice of the council of state. Amnesties shall only be granted by an express law. The president of the republic, the ministers, as well as all other persons condemned by the high court of justice, can only be pardoned by the national assembly.”

I do not consider it desirable that the pardoning power be given or imposed upon a political body already existing for other purposes, as in this case to the council of state; but I have cited this provision to show that the French at that time did nut consider the limitation of the pardoning power in the executive unfavorable to popular liberty.

[1.]A remarkable proof of this fact seems to have been afforded by the late constituent assembly of the state of New York; for, so far as we are aware, there was no debate on the question whether the pardoning power ought to be left uncontrolled in the hands of the executive. We can very well imagine that, after a discussion of this subject, a majority might have decided, erroneously in our opinion, that the pardoning privilege ought to remain where it was; but we cannot imagine that a large number of men could have possibly been from the beginning so unanimous upon so important a subject, that not even a discussion was elicited, had the pardoning been made a subject of any reflection at all. This is impossible in the nature of things. Men will differ in opinion upon almost any point, and would certainly have differed upon so weighty and delicate a subject, had their minds been directed to it.

[2.]We certainly think that ill health, threatening disastrous consequences, should form a ground of release in cases of comparatively short sentences, if no good prison hospital exists. But, even where no hospital exists (which is undoubtedly a great deficiency), much caution must be exercised. An experienced and highly respectable prison physician in Massachusetts stated in his report, some years ago, that pardons on account of deficient health had a tendency to increase sickness in the prison, because many prisoners will seriously and perseveringly injure their health in the hope of obtaining thereby a pardon. A prison ought to have a hospital, and if, in spite of a good hospital, the consciousness of being imprisoned has of itself any bad consequences for the imprisoned patient, it must be taken as one of the many incidental but unavoidable consequences of all imprisonment. There are more serious consequences than this, which we are, nevertheless, unable to separate from punishment. Punishment ought always to be individual, and to strike no one but the evil-doer: yet there is hardly ever an individual punished whose sentence does not at the same time entail moral or physical suffering upon others. Men are decreed to constitute societies, with concatenated weal and woe, and human judges cannot punish without indirectly inflicting suffering upon those who are unconnected with the crime, but connected with the criminal. If we were absolutely to follow out the first principle, that the offender alone should suffer, we could not punish a single convict.

[1.]National Gazette, Philadelphia, October 10, 1833.

[2.]De la Ville de Mirmont, Observations sur les Maisons Centrales de Detention de Paris, 1833, p. 55, and sequ.

[1.]National Intelligencer, Washington, July 12, 1853.