PARDON, in Criminal Law, is the remitting or forgiving an offence committed against the king.
Law, says Beccaria, cannot be framed on principles of compassion to guilt; yet justice, by the constitution of England, is bound to be administered in mercy. This is promised by the king in his coronation oath; and it is that act of his government which is the most personal and most entirely his own. The king condemns no man; that unpleasant task he leaves to his courts of justice; the great operation of his sceptre is mercy. His power of pardoning was said by the Saxons to be derived a lege sue dignitatis; and it is declared in Parliament, by stat. 27 Henry VIII., c. 24, that no other person has power to pardon or remit any treason or felonies whatsoever, but that the king has the whole and sole power thereof, united and knit to the imperial crown of this realm.
It is impossible to lay down any abstract rules for the administration of mercy. Each case must be judged of according to its own circumstances.
That human nature is such as in the aggregate to need control, no one who is acquainted with it will deny; and there appears to be no other method of controlling mankind but by general laws; but then, through the natural imperfection of human affairs, they may be cruel in one case while they are just in another. Cases may likewise occur where the sentence of the law, without its execution, will answer every purpose which could be expected from it, and where the execution of it would be extreme cruelty, although it might in strict language be called justice, because in conformity with the letter of the law. Yet though such cases may and do often occur, it would be absurd to abolish any of those laws which the security of civil society has required; and therefore the only mode of regulating their operation in criminal matters seems to be the system of absolute or conditional pardons.
It is possible to define a particular crime, and to annex a particular punishment to the commission of it; while the moral guilt of criminals may vary. The real guilt consists not in the external action, but in the motives which prompted to it. Definite law, however, cannot always make such distinctions; besides, after the sentence of the law is pronounced, circumstances may emerge which present the case in a very different aspect from what it previously bore. Then there are what may be called accidents of the case, which could not be previously defined. To particularize and define, in laying down a law, every mode of an action which imagination can conceive, or which experience has shown us may happen, is utterly impossible; and therefore it seems equitable that there should be a power vested somewhere to modify and control, or even to discharge altogether, the judgments of the law in criminal cases; and that power in this country is judicially vested in the sovereign in council, or in Parliament by acts of indemnity. It is not exercised so as to affect the private rights of third parties; and therefore, though the manslayer may be pardoned, the private right of the next of kin to damages is not thereby prejudiced.