Book 7, Chapter 09 : Of Pardons
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Book 7, Chapter 09
Their absurdity. - Their origin. - Their abuses. - Their arbitrary character. - Destructive of morality.
There is one other topic which belongs to the subject of the present book, but which may be dismissed in a very few words, because, though it has unhappily been, in almost all cases, neglected in practice, it is a point that seems to admit of uncommonly simple and irresistible evidence: I mean the topic of pardons.
The very word, to a reflecting mind, is fraught with absurdity. 'What is the rule that ought, in all cases, to direct my conduct?' Surely justice; understanding by justice the greatest utility of the whole mass of beings that may be influenced by my conduct. 'What then is clemency?' It can be nothing but the pitiable egotism of him who imagines he can do something better than justice. 'Is it right that I should suffer constraint for a certain offense?' The reasonableness of my suffering must be founded in its consonance with the general welfare. He therefore that pardons me iniquitously prefers the supposed interest of an individual, and utterly neglects what he owes to the whole. He bestows that which I ought not to receive, and which he has no right to give. 'Is it right, on the contrary, that I should not undergo the suffering in question? Will he, by rescuing me from suffering, confer a benefit on me, and inflict no injury on others?' He will then be a notorious delinquent, if be allows me to suffer. There is indeed a considerable defect in this last ,supposition. If, while he benefits me, lie inflicts no injury upon others, he is infallibly performing a public service. If I suffered in the arbitrary manner which the supposition includes, the public would sustain an unquestionable injury in the injustice that was perpetrated. And yet the man who prevents this odious injustice has been accustomed to arrogate to himself the attribute of clement, and the apparently sublime, but, in reality, tryannical, name of forgiveness. For, if he do more than has been here described, instead of glory, he ought to take shame to himself, as an enemy to human kind. If every action, and especially every action in which the happiness of a rational being is concerned, be susceptible of a certain rule, then caprice must be in all cases excluded: there can be no action which, if I neglect, I shall have discharged my duty, and, if I perform, I shall be entitled to applause.
The pernicious effect of the system of pardons is peculiarly glaring. It was first invented as the miserable supplement to a sanguinary code, the atrociousness of which was so conspicuous that its ministers either dreaded the resistance of the people, if it were indiscriminately executed, or themselves shrunk with unconquerable repugnance from the devastation it commanded. The system of pardons obviously associates with the system of law; for, though we may call every case, for instance, in which one man occasions the death of another, by the name of murder, yet the injustice would be too great to apply to all cases the same treatment. Define murder as accurately as we please, the same consequence, the same disparity of cases, will obtrude itself. It is necessary therefore to have a court of reason to which the decisions of a court of law shall be brought for revisal.
But how is this court, inexpressibly more important than the other, to be constituted? Here lies the essence of the matter; the rest is form. A jury is impaneled to tell you the genetical name of the action; a judge presides, to read out of the volume of the law the prescription annexed to that name; last of all comes the court of inquiry, which is to decide whether the prescription of the dispensatory is suitable to the circumstances of this particular case. This authority we are accustomed to invest, in the first instance with the judge, and in the last resort with the king in council. Now, putting aside the Propriety or impropriety of this particular selection, there is one grievous abuse which outh to strike the most superficial observer. These persons with whom the principal trust is reposed consider their functions in this respect as a matter purely incidental, exercise them with supineness, and, in many instances, with the most scanty materials to guide their judgment. This grows in a considerable degree out of the very name of pardon, by which we are accustomed to understand a work of supererogatory benevolence.
From the manner in which pardons are dispensed inevitably flows the uncertainty of punishment. It is too evident that punishment is inflictcd by no certain rules, and therefore creates no uniformity of expectation. Uniformity of treatment, and constancy of expectations form the sole basis of a genuine morality. In a just form of society, this would never go beyond the sober expression of those sentiments of approbation or disapprobation with which different modes of conduct inevitably impress us. But, if we at present exceed this line, it is surely an execrable refinement of injustice that should exhibit the perpetual menace of suffering, unaccompanied with any certain rule foretelling its application. Not more than one third of the offenders whom the law condemns to death in this metropolis are made to suffer the punishment that is awarded. Is it possible that each offender should not flatter himself that he shall be among the number that escapes? Such a system, to speak it truly, is a lottery of death, in which each man draws his ticket for reprieve or execution, as undefinable accidents shall decide.
It may be asked whether 'the abolition of law would not produce equal uncertainty?' By no means. The principles of king and council, in such cases, are very little understood, either by themselves or others. 'I'he principles of a jury of his neiglibours, commissioned to pronounce upon the whole of the case, the criminal easily guesses. He has only to appeal to his own sentiments and experience. Reason is a thousand times more explicit and intelligible than law; and when we were accustomed to consult her, the certainty of the decsions would be such as men, practiced in our present courts, are totally unable to conceive.
Another important consequence grows out of the system of pardons. A system of pardons is system of unmitigated slavery. I am taught to expect a certain desirable event, from what? From the clemency, the uncontrolled, unmerited kindness of a fellow mortal. Can any lesson be more degrading? The pusillanimous servility of the man, who devotes himself with everlasting obsequiousness to another, because that other, having begun to be unjust, relents in his career; the ardor with which he confesses the equity of his sentence and the enormity of his deserts will constitute a tale that future ages will find it difficult to understand.
What are the sentiments in this respect that are alone worthy of a rational being? Give me that, and that only, which without injustice you cannot refuse. More than justice it would be disgraceful for me to ask, and for you to bestow. I stand upon the foundation of right. 'I'his is a title which brute force may refuse to acknowledge, but which all the force in the world cannot annihilate. By resisting this plea, you may prove yourself unjust; but, in yielding to it, you grant me but my due. If, all things considered, I be the fit subject of a benefit, the benefit is merited: merit, in any other sense, is contradictory and absurd. If you bestow upon me unmerited advantage, you are a recreant from the general good. I may be base enough thank you; but, if I were virtuous, I should condemn you.
These sentiments alone are consistent with true independence of mind. He that is accustomed to regard virtue as an affair of favor and grace cannot be eminently virtuous. If he occasionally perform an action of apparent kindness, he will applaud the generosity of his sentiments; and, if he abstain, he will acquit himself with the question, 'May I not do what I will with my own?' In the same manner, when he is treated benevolently by another, he will, in the first place, be unwilling to examine strictly into the reasonableness of this treatment, because benevolence, as he imagines, is not subject to any inflexibility of rule; and, in the second place, he will not regard his benefactor with that erect and unembarrassed mien, that manly sense of equality, which is the only unequivocal basis of virtue and happiness.
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