1911 Encyclopædia Britannica/Pardon

​PARDON (through the Fr. from Late Lat. perdonare, to remit a debt or other obligation on a penalty), the remission, by the power entrusted with the execution of the laws, of the penalty attached to a crime. The right of pardoning is coextensive with the right of punishing. In a perfect legal system, says Beccaria, pardons should be excluded, for the clemency of the prince seems a tacit disapprobation of the laws (Dei Delitti e delle pene, ch. xx.). In practice the prerogative is extremely valuable, when used with discretion, as a means of adjusting the different degrees of moral guilt in crimes or of rectifying a miscarriage of justice. By the law of England pardon is the sole prerogative of the king, and it is declared by 27 Hen. VIII. c. 24 that no other person has power to pardon or remit any treasons or felonies whatsoever. This position follows logically from the theory of English law that all offences are breaches of the king’s peace. Indictments still conclude with a statement that the offence was committed “against the peace of our lord king, his crown and dignity.” The Crown by pardon only remits the penalty for an attack upon itself. The prerogative is in modern times exercised by delegation, the Crown acting upon the representation of the secretary of state for the home department in Great Britain, or of the lord lieutenant in Ireland. The prerogative of the Crown is subject to some restrictions: (1) The committing of a subject of the realm to a prison out of the realm is by the Habeas Corpus Act a praemunire, unpardonable even by the king (31 Car. II. c. 2, § 12). (2) The king cannot pardon an offence in a matter of private rather than of public wrong, so as to prejudice the person injured by the offence. Thus a common nuisance cannot be pardoned while it remains unredressed, or so as to prevent an abatement of it. A fine or penalty imposed for the offence may, however, be remitted. By an act of 1859 (22 Vict. c. 32) his majesty is enabled to remit wholly or in part any sum of money imposed upon conviction, and, if the offender has been imprisoned in default of payment, to extend to him the royal mercy. There are other statutes dealing with special offences, e.g. by the Remission of Penalties Act 1875 his majesty may remit any penalty imposed under 21 Geo. III. c. 49 (an act for preventing certain abuses and profanations on the Lord’s Day called Sunday). (3) The king’s pardon cannot be pleaded in bar of an impeachment. This principle, first asserted by a resolution of the House of Commons in the earl of Danby’s case (May 5, 1679), forms one of the provisions of the Act of Settlement, 12 & 13 Will. III. c. 2. It is there enacted “that no pardon under the great seal of England shall be plead able to an impeachment by the Commons in parliament,” § 3, This provision does not extend to abridging the prerogative after the impeachment has been heard and determined. Thus three of the rebel lords were pardoned after impeachment and attainder in 1715. (4) In the case of treason, murder or rape a pardon is ineffectual unless the offence be particularly specified therein (13 Rich. II. c. 1, § 2). Before the Bill of Rights, 1 Will. & M. c. 2, § 2, this statute seems to have been frequently evaded by a non obstante clause. But, since by the Bill of Rights no dispensation by non obstante is allowed, general words contrary to the statute of Richard II. would seem to be ineffectual.

Pardon may be actual or constructive. Actual pardon is by warrant under the great seal, or under the sign-manual countersigned by a secretary of state (7 & 8 Geo. IV. c. 28, § 13). Constructive pardon is obtained by endurance of the punishment. By 9 Geo. IV. c. 32, § 3, the endurance of a punishment on conviction of a felony not capital has the same effect as a pardon under the great seal. This principle is reaffirmed in the Larceny Act 1861, § 109, and in the Malicious Injuries to Property Act 1861, § 67. Further, pardon may be free or conditional. A conditional pardon most commonly occurs where an offender sentenced to death has his sentence commuted to penal servitude or any less punishment. The condition of his pardon is the endurance by him of the substituted punishment. The effect of pardon, whether actual or constructive, is to put the person pardoned in the position of an innocent man, so that he may have ​an action against any one thenceforth calling him traitor or felon. He cannot refuse to give evidence respecting the offence pardoned on the ground that his answer would tend to criminate him. A pardon may be pleaded on arraignment in bar of an indictment (though not of an impeachment), or after verdict in arrest of judgment. No doubt it would generally be advantageous to plead it as early as possible.

It is obvious that, though the Crown is invested with the right to pardon, this does not prevent pardon being granted by the higher authority of an act of parliament. Acts of indemnity have frequently been passed, the effect of which is the same as pardon or remission by the Crown. Examples of acts of indemnity are two private acts passed in 1880 to relieve Lords Byron and Plunket from the disabilities and penalties to which they were liable for sitting and voting in the House of Peers without taking the oath.

Civil rights are not divested by pardon. The person injured may have a right of action against the offender in spite of the pardon of the latter, if the right of action has once vested, for the Crown cannot affect private rights. In Scotland this civil right is specially preserved by various statutes. Thus 1593, c. 174, provides that, if any respite or remission happen to be granted before the party grieved be first satisfied, the same is to be null and of none avail. The assythment, or indemnification due to the heirs of the person murdered from the murderer, is due if the murderer has received pardon, though not if he has suffered the penalty of the law. The pardon transmitted by the secretary of state is applied by the supreme court, who grant the necessary orders to the magistrates in whose custody the convict is.

In the United States the president is empowered to pardon offences against the United States, except in cases of impeachments (U.S. Constitution, art. ii. § 2). The power of pardon is also vested in the executive authority of the different states, with or without the concurrence of the legislative authority, although in some states there are boards of pardon of which the governor is a member ex officio. Thus by the New York Code of Criminal Procedure the governor of the state of New York has power to grant reprieves, commutations and pardons, except in the case of treason, where he can only suspend the execution of the sentence until the case can be reported to the legislature, with whom the power of pardon in this case rests. The usual form of pardon in the United States is by deed under seal of the executive.