Front Page Titles (by Subject) chapter four: On the Prerogative of Exercising Mercy - Principles of Politics Applicable to All Governments
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chapter four: On the Prerogative of Exercising Mercy - Benjamin Constant, Principles of Politics Applicable to All Governments 
Principles of Politics Applicable to a all Governments, trans. Dennis O’Keeffe, ed. Etienne Hofmann, Introduction by Nicholas Capaldi (Indianapolis: Liberty Fund, 2003).
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On the Prerogative of Exercising Mercy
All legislation which does not admit the right to show mercy or to commute sentences deprives the accused and even the guilty of a right which legitimately belongs to them.
An inseparable drawback of general laws is that these laws cannot apply with equal justice to several actions of diverse type.
The more general a law, the further it is from the particular actions on which it is nevertheless intended to pronounce. A law can be perfectly just only for one circumstance. As soon as it is applied to two circumstances only minutely different, it is more or less unjust in one of the two.
Facts are infinitely nuanced. The laws cannot follow them in their modifications. The right to exercise mercy or to soften  a punishment is necessary to make up for the inflexibility of the law. This right is in reality nothing other than the right to take into consideration an action’s circumstances in order to decide if the law is applicable to it.
The prerogative of mercy has been opposed by one of these decisive dilemmas which seem to simplify questions by misrepresenting them. If the law is just, it is said, nothing should have the power to prevent its execution. If it is unjust, it should be changed.13 Only one condition would be necessary for this reasoning not to be absurd. This would be that there was one law for each fact.
The question of intention replaces in part the prerogative of mercy. But it makes up for it only imperfectly. Moreover, when you call on a jury to pronounce on anything save the facts, you are distorting its function. When you ask judges to do anything other than read the written text of the law, you are distorting their function.
The Court of Cassation14 in our country indirectly exercises the prerogative of mercy. When a law chances to be literally but too harshly applied to a guilty party, this court searches the procedures for some formal error which allows it to overthrow the judgment. But a good born of a wrong is always bad in other respects. Moreover, if the procedures are perfectly  regular, the court finds itself forced to deliver the condemned man over to a punishment he does not deserve morally, one it would have been just to mitigate. In truth this case is rare, given the complications of the prescribed formalities; but this too is one more shortcoming.
A single difficulty stands out in relation to the prerogative of mercy. If you entrust this right to the holders of executive power, they will consider this attribution accidental and secondary. They will discharge it negligently. They will not have time to devote themselves to an examination of all the circumstances which ought to motivate their decision. Punishments then not being inflicted according to any precise rule, the principal advantage of positive laws disappears. All the guilty will live in the hope of being favored by luck or caprice. The system will become a lottery of death, in which a thousand unforeseeable incidents will arbitrarily confound all chances of salvation or destruction.
We can prevent this difficulty by attaching this law to a specific authority. The men in whom it is invested would then exercise it with the thoughtfulness and gravity it demands.
But another difficulty would arise. A specific authority or any section whatever of judicial power, invested with the prerogative of mercy, would naturally make rules for itself in order to exercise it. The exercise of the prerogative would therefore become by this very consideration a judgment. We would no longer find in it the kind of vagueness and moral latitude which essentially constitute its justice and usefulness.
It is not part of our researches to decide to which one of these drawbacks to resign ourselves. It is a question which must perhaps be resolved differently according to the circumstances of each country. What is certain is that neither one nor the other of these difficulties is great enough to prevail over the necessity of entrusting to some authority or other the prerogative of mercy.
On the Action of Government with Regard to Property
[13. ]Constant summarizes here the critique made particularly by William Godwin. He had translated some of Godwin’s work. See Benjamin Constant, De la justice politique (unpublished translation of a work by William Godwin), edited by Burton R. Polin, Quebec, les Presses de l’Université Laval, 1972 (Droit, science politique 5), Livre VI, Ch. 7, pp. 307–309. One also finds the same critique of the prerogative of mercy in Jeremy Bentham, in his Principes du code pénal, Troisième Partie, Ch. 9, op. cit., t. II, pp. 432–434.
[14. ]The Court of Cassation, according to the terms of the laws of 27 November and 2 December 1790, had the attributions of: “annulling all procedures in which due process had been violated and invalidating any judgment which expressly contravenes the text of the law.” Cf. Edmond Seligman, La justice en France pendant la Révolution (1789–1792), Paris, Plon-Nourrit, pp. 321 and following.