It is necessary to increase the magnitude of a punishment in proportion as it is wanting in certainty. The less certain your punishments are, the more severe they must be; the more certain your punishments are, the more you may reduce their severity.
What shall we then say of a power expressly established for rendering them uncertain? I mean the power of pardoning: it has cruelty for its cause, it has cruelty for its effect.
Among nations, as among individuals, the government of the passions precedes that of reason. The object of primitive punishments was, to assuage the rage of their authors. Of this there are two proofs: the first is drawn from the multitude of cases in which the most severe punishments have been lavished upon actions which have but a slightly hurtful influence upon the happiness of individuals or society, and with respect to which such evil influence was not sought to be established, till long after these punishments were appointed---of this kind are the punishments directed against heresy. The second is drawn from the praises lavished upon clemency: for whilst the effect of an offense is only to enrage the Sovereign, there is merit in his abstaining from punishing it. There is utility in his so doing, for by a privation which is borne by him alone, he spares the infliction of terrible evils upon a multitude of persons. In this consists the difficulty, for it is difficult to a man accustomed to follow the bent of his inclinations to restrain them. Suppose the effect of a crime is to interrupt his ease, and the effect of the punishment is to repress this crime; to abstain from the application of this punishment is a treason of which the most pardonable sources are feebleness or folly. To praise the clemency of the Sovereign upon this supposition, is to praise the surgeon, who allows his patient to perish by not cutting off a gangrened finger. Among Sovereigns, therefore, without cruelty, the use of unmerited pardons could not take place: the reason is, an enlightened love of the public welfare does not engage him in undoing with one hand what he had done with the other. If the punishments have not had for the cause of their establishment cruelty towards individuals, it is cruelty towards the public to render them useless, to violate his promise, the engagement which he has made to the laws to put them in execution
I speak here of gratuitous pardons, such as all pardons have hitherto been. There are cases in which the power of pardoning is not only useful, but necessary. In all these cases, if the punishment were inflicted, the evil produced would exceed the good, and in some cases, almost infinitely. If the legislator could have known that certain individual cases would or would not be included in the general case in which he would have wished that the punishment should cease, he would act unwisely were he to rely upon any other person for its cessation. For why should he give to another a power to frustrate his designs?
But he does not possess this knowledge, unless in quality of legislator, he acts also in that of a prophet. It follows, therefore, that he must rely upon some other.
In English law, one method by which the law gives to a party injured, or rather, to every prosecutor, a partial power of pardon, consists in giving him the choice of the kind of action which he will commence. On this, or on the difference between the actions, depends a difference between the punishments---so far as the happening of this difference is concerned, the lot of the offender depends not on the gravity of his offense, but on some other foreign circumstances, such as the degree of the ill-will of the party injured, or other prosecutor, or of the knowledge of his legal advisers. The Judge is a puppet in the hands of any prosecutor, which he can cause to move at his pleasure and caprice.
There are many persons, as we have seen, who exercise the power of pardoning; there are many others who possess it who are not observed.
Among the latter class may be placed those who have the power of placing nullities in the course of procedure. In England, an attorney, or his clerk, any copying clerk at eighteen pence or two shillings per day, may grant or sell impunity to whomsoever it seems them good.
If the individual injured can directly, or indirectly, put an end to a criminal process, otherwise than by the punishment before the judgment has been pronounced, and in case of conviction, executed, he enjoys in effect this right of pardoning. The right of remission is then one branch of the power of pardoning. When the interest of the public requires that the punishment should take place, the individual injured ought not to enjoy this right; when this interest does not require it, he may enjoy it.
This power may be allowed in all cases, when the offence on which it operates, being founded only in a private quarrel, does not spread any alarm through society, or at least does not spread any alarm which the conduct of the parties does not destroy.
But in the case of corporal injuries, how trifling soever, and especially in the case of injuries accompanied with insult, this remission ought not to be allowed without the knowledge of the Judge, otherwise the weakness and good-nature of some minds would serve to draw down upon them vexation from hardened oppressors.
Homicide is a case in which the power of remission ought not to be allowed to any one in particular. It would, in effect, be to grant to him an arbitrary power over the life of those whose death he might thus pardon; he might boldly employ any assassin, by exercising in favour of that assassin his power of pardoning.
If to grant to any one whatsoever, the power of taking away a reward offered by the legislator would be regarded as an absurdity, to grant the power of taking away a punishment in the opposite case, with the reserve of specific exceptions, would be a more terrible absurdity.
This absurdity is not found in the system of rewards: no person proposes to take away a reward after the legislator has offered it; the nullities, however, allowed in prosecutions, when he has appointed a reward for offenders, operates to this effect in the case of punishment.
The frequency of capital punishment is one of the most probable causes of the popularity of pardons.
In England, it may therefore admit of debate, whether the legislature has done most evil by appointing so many capital punishments, or the Sovereign, by exercising his power of remitting them.
The essence of this power is, to act by caprice. The King, as it is falsely said,---the Deputy of the King, as it ought to have been said, does not act judicially; he does not act from a knowledge of the matter; he has not the power of doing so; he has not even the power of compelling the attendance of witnesses. Is a lie told before this powerless despot? it is an unpunishable lie.
The power of pardoning is often said to be one of the brightest jewels in the Royal Crown: it is burdensome as it is bright, not only to those who submit to the Crown, but still more so to him also who wears it.
Many cases have occurred in England in which the counsellors of the Crown have, from more or less praiseworthy motives, made use of this lawful despotism of the King, to soften the tyranny of the laws. Never was power so undoubtedly legal, though undue, employed for a more legitimate purpose,---the result, however, has been, not that the Minister has been applauded as he deserved, but he has become the object of clamour, libels, and threats. The most correct and legitimate exercise of the powers impoliticly attached to his character, has only served to draw down upon the King that treatment which a tyrant would have merited.
How much discontent and fear would have been spared, if a right, legally abusive, had given place to an enlightened and well ordered law.