CERTAINTY OF PUNISHMENTS—PARDONS.
One of the greatest preventives of crimes is, not the cruelty of the
punishments attached to them, but their infallibility, and consequently
that watchfulness on the part of the magistrates and that inexorable
severity on the part of the judge which, to be a useful virtue, must
coincide with a mild system of laws. The certainty of a punishment,
moderate though it be, will ever make a stronger impression than the
fear of another, more terrible, perhaps, but associated with the hope
of impunity; for even the least evils when certain always terrify men’s
minds, and hope, that gift of heaven, which often makes up to us for
everything, always throws into the distance the idea of greater evils,
especially when its force is increased by impunity, which avarice and
weakness so often grant.
It is sometimes the custom to release a man from the punishment of a
slight crime when the injured person pardons him: an act, indeed, which
is in accordance with mercy and humanity but contrary to public policy;
as if a private citizen could by his remission do away with the necessity
of the example in the same way that he can excuse the reparation due for
the offence. The right of punishing does not rest with an individual,
but with the community as a whole, or the sovereign. An individual can
only renounce his particular portion of that right, not annul that of all
the rest.
In proportion as punishments become milder, clemency and pardon become
less necessary. Happy the nation in which their exercise should be
baneful! Clemency, therefore, that virtue, which has sometimes made up
in a sovereign for failings in all the other duties of the throne, ought
to be excluded in a perfect system of legislation, where punishments
are mild and the method of trial regular and expeditious. This truth
will appear a hard one to anybody living in the present chaotic state
of the criminal law, where the necessity of pardon and favours accords
with the absurdity of the laws and with the severity of sentences of
punishment. This right of pardon is indeed the fairest prerogative of
the throne, the most desirable attribute of sovereignty; it is, however,
the tacit mark of disapproval that the beneficent dispensers of the
public happiness exhibit towards a code, which with all its imperfections
claims in its favour the prejudice of ages, the voluminous and imposing
array of innumerable commentators, the weighty apparatus of unending
formalities, and the adhesion of those persons of half-learning who,
though less feared than real philosophers, are really more dangerous.
But let it be remembered that clemency is the virtue of the maker, not
of the executor, of the laws; that it should be conspicuous in the code
of laws rather than in particular judgments; that the showing to men,
that crimes may be pardoned and that punishment is not their necessary
consequence, encourages the hope of impunity, and creates the belief
that sentences of condemnation, which might be remitted and are not, are
rather violent exhibitions of force than emanations of justice. What
shall be said then when the sovereign grants a pardon, that is, public
immunity to an individual, and when a private act of unenlightened
kindness constitutes a public decree of impunity? Let the laws therefore
be inexorable and their administrators in particular cases inexorable,
but let the law-maker be mild, merciful, and humane. Let him found his
edifice, as a wise architect, on the basis of self-love; let the general
interest be the sum of the interests of each, and he will no longer be
constrained, by partial laws and violent remedies to separate at every
moment the public welfare from that of individuals, and to raise the
appearance of public security on fear and mistrust. As a profound and
feeling philosopher let him allow men, that is, his brethren, to enjoy in
peace that small share of happiness which is given them to enjoy in this
corner of the universe, in that immense system established by the First
Cause, by Him Who Is.