_What is commonly called Clemency in Princes and Magistrates, is
pernicious to the Public._
IX. Clemency, as it is explained by Moralists and Theologians, is a
virtue; but as understood by the vulgar, it is a vice. This different
acceptation of one and the same word, may be easily accounted-for. If
we advert to the doctrine laid down by St. Thomas, we shall there find,
Clemency explained as not inconsistent with severity. But I ask whether
in the idea of the vulgar, these two qualities are not very different?
They are clearly so; because that which is termed severe, they without
the least hesitation deny can be clement. Therefore the signification
which the vulgar give to the word Clemency, is different from that which
is given to it by learned and wise men.
X. Severity then in the opinion of these last, is an habitual
inflexibility of the mind, which will not relax in the punishment of
crimes, whenever the dictates of right reason require they should be
punished. Clemency also, as explained by them, is an habitual disposition
to lessen the punishment of crimes, whenever the same right reason
dictates that they should be lessened; _Quando oportet, et in quibus
oportet_, says the angelic doctor, and it is from his doctrine that this
definition is taken. It is clear, there is no opposition, but rather an
agreeable harmony between these two qualities; and it is also clear, that
the vulgar look upon that inflexibility of the mind in which severity
consists, as diametrically opposite to clemency; and thus they call
obdurate, rigorous, inexorable, and austere, all those, who possess that
inflexible habit.
XI. That prince or magistrate is clement in the opinion of the vulgar,
who is to be wrought upon by the intreaties of friends, the tears of the
guilty, and the cries of his orphan family; and who indulges the softness
of his own disposition, and is induced from these motives, to mitigate
the punishments, which the law has allotted to crimes. But in reality,
this is not Clemency, but injustice. It is rather a vileness, and a
weakness of mind, which is cloaked under the name of Clemency. He is a
protector and an encourager of wickedness, who from such considerations,
and without any other motives, slackens his hand in the punishment of
crimes. He is an indirect tyrant of the state, and becomes an abettor
of all those evils, which are occasioned by the daring rashness of
delinquents; and he is also a multiplier of them to an excessive number,
by his forbearing to deter bad men from committing them by proper
examples; and it is for this reason, that we said in the title of this
paradox, that that which is called Clemency in princes and magistrates,
is prejudicial to the public at large.
XII. Who then should be deemed truly clement? Why he who after duly
weighing and considering all the particulars and circumstances of a case,
is convinced by the dictates of right reason, that he ought to lessen the
punishment assigned to a crime by the common law, and does lessen it in
consequence of such a conviction. This is all agreeable to the doctrine
of St. Thomas before quoted; and from hence it may be inferred, that the
exercise of clemency can never be arbitrary, as is generally imagined.
I mean, that the lessening a punishment which the law prescribes for
a guilty person, can never be supposed to depend upon the mere will
of a prince or magistrate. He ought only to lessen it, when he finds
after maturely weighing the circumstances, that it should be lessened,
for if they would not justify his doing it, he should not lessen it at
all. There is no middle way. Clemency is a moderating virtue, which if
exercised with excessive zeal may become vicious. I am very well aware,
this is giving much less extension to the virtue of clemency than the
general opinion allows to it. But that is nothing to the purpose, for
this is the true and sound doctrine respecting it.
XIII. The just motives for lessening punishments in various cases, are
many; for example, the antecedent merits of the convicted person, the use
he may be of to the public, his known ignorance of the consequence of
what he did, or his having committed the crime inadvertently; any serious
inconvenience that might result to the public from his punishment; or any
convenience that might be derived to the state from moderating it, &c.
XIV. That great Asturian hero, Pedro Menendez de Aviles governour of
Florida, acted on various occasions, and in matters of the utmost
importance, contrary to the orders that had been given him by the king.
For each of these transgressions, according to the strict letter of the
law, he deserved to be punished capitally. The king, and a king who was
so zealous of his authority as Philip the second, pardoned them all; but
not totally, for we may estimate as a partial punishment, his delaying
so long to confer on him the rewards due to his signal merits, during
which interval, that eminent man experienced not a few pinchings and
inconveniences. The king acted clemently by proceeding in this manner;
for it would have been unjust, cruel, and savage in many respects, if he
had adhered to the letter of the law in punishing him. The state would
have lost a most profitable subject, some signal merits would have gone
unrewarded, and so ill judged a precedent, would have been productive of
great disadvantages to the public, because other commanders, who might
afterwards find themselves in circumstances where strictly obeying their
orders would be attended with pernicious consequences, would obey them
notwithstanding, for fear of the punishment. Even without the assistance
of so bad a precedent, that dread, occasioned the ruin of the grand
Armada, fitted out by the same king Philip for the chastisement of
England.
XV. I suppose, that Peter Menendez, having always been successful when
he acted contrary to his orders, conduced much to excite, if it was not
the sole cause of the king’s lenity and benevolence to him. But even the
plea of this merit, was of no avail to that valiant youth the son of
Manlius Torquatus, who after returning home victorious and crowned with
laurels, was by order of his own father put to death, for having contrary
to his orders, fought with, and defeated his enemies. This was acting
with improper severity, for although the offence by the strict letter of
the law, should have been punished capitally, the putting him to death
was savage, cruel, inhuman, and barbarous. The ardour and fire of his
youth, ought to have been admitted as a plea to mitigate his fault; but
there was much more room for shewing lenity to him on account of the
zeal he manifested for the public good, by taking the advantage of a
favourable conjuncture, which it was impossible for the Consul to foresee
when he gave him his orders, and thereby, doing so eminent a service to
his country. But the ferocious and sour virtue of the obdurate Manlius,
neither weighed circumstances, nor attended to, or was influenced by the
dictates of morality; and thus, he unjustly deprived his country of the
life and services of a youth, who gave the most promising hopes of his
becoming one day a great commander.
XVI. When the circumstances of a case do not afford just motives
for departing from the letter of the law, there is no room for the
exercise of clemency; as the departing from it in such an instance,
would be injustice, and it is impossible that the same action, should
be conformable to one virtue, and contrary to another, because at that
rate, it might be both good and bad at one and the same time. Thus in
these cases, there is no other course to take, but that of applying
the punishment the law prescribes, without regarding the clamours
of weak-minded people, who are capable of censuring such conduct as
over-severe or harsh; for acting in this manner conduces to the public
good.
XVII. Annon, the pious archbishop of Cologne, did, in the eleventh
century, cause the eyes of several of his judges to be put out, for
having given an unjust judgment against a poor woman; but he left one
of the number with a single eye, in order that he might be able to lead
the others about. I suppose that such an example, could not fail to fill
the whole city with horror; but although many might exclaim against the
cruelty of it, it was still just and useful, as the blinding of those
few judges, might contribute to open the eyes of an infinite number of
others, and cause them to look attentively, how they pronounced sentences
in future.
XVIII. The case I am about to mention, is more singular still: when
Count Evkembaldus the sovereign of Burdan, was in a very weak and infirm
state, a complaint was preferred to him against a nephew of his, who
had violated the chastity of a young lady, and upon the charge being
clearly proved against him, he, as he was a zealous lover and assertor
of justice, ordered him to be put to death; but those who were directed
to execute this sentence, evading doing it, upon a supposition that the
Count must soon die, somebody informed him of the omission; and as he saw
clearly that in his present weak state, although he should repeat his
orders, they would not be executed, he artfully contrived, by declaring
that his indignation against the youth was appeased, and that he was
disposed to forgive him, to get him brought into his sick room, where
coaxing him under some pretence to approach his bed, he seized him by the
collar with his left hand, and with a poignard that he held concealed in
his right, stabbed him into the throat, and killed him on the spot. Many
seemed scandalized with this act; but there is no reason to suppose, that
it was displeasing in the eyes of God.
XIX. This inviolable integrity in the administration of justice, is no
indication of obdurateness, but is rather compatible, with the greatest
tenderness and compassion the human heart is susceptible of; although,
where effective clemency cannot be admitted, there may be room for the
introduction of the affective.
Briante Prieneus, one of the seven wise men of Greece, was observed to
weep very bitterly after condemning a guilty person to death; upon
which, somebody present asked him why he lamented, since it was in his
own power to pardon the man; to this he answered, _You mistake, for it is
by no means in my power, and therefore I weep. His life is a debt that is
due to justice, and this tenderness of mine, one that I owe to nature._
It is said of Vespasian, that he frequently wept and lamented in tears,
the deaths of guilty persons, whom he himself had justly condemned.
XX. To him who has a heart so delicate, that the gentleness of his
disposition is apt to degenerate into weakness and debility, I will
prescribe an admirable remedy, which shall comfort and strengthen his
heart, and not lessen or abate its softness. This consists, in directing
his attention to contemplate another object, and in making that the
object of his compassion. Let us figure to ourselves a judge, at the
crisis when he has just passed sentence of death on a notorious rogue,
who has been guilty of many cruelties and outrages, and when he is
assailed with the cries and intreaties of the convict to be merciful to
him; and let us also consider him, when those intreaties are afterwards
repeated with the enumeration of all those particulars, that are most
likely to excite tenderness and compassion, such, as imploring him to
commiserate his distressed wife and children, and to look with an eye
of pity, on the miserable and afflicted state of an unhappy man, who is
all contrition and repentance, and whose ignominious death, will bring
disgrace and affliction on his innocent friends and relations. Upon
hearing this, he may be apt to say to himself, taking away the life of
a man is a terrible thing, and may perhaps revolve in his mind, all the
horrors of a person leading to execution, and also those he may feel,
when he is just on the point of suffering the punishment he has been
condemned to by the law. These reflections may possibly stagger his
constancy, and dispose him to pardon the offender.
XXI. But if he would turn the eyes of his understanding from
contemplating this tragical picture, and view another, which is much more
tragical, and which is drawn and depicted from the circumstances that
appeared in evidence at the trial; he might there see representations
of cruelty and outrage in a variety of shapes, and distress and misery
of various kinds, which have been brought by the depredations of this
savage fury, on numbers of innocent people, who are all then praying
that justice may be done on this violator of the laws of God and man;
this enemy to the peace, security, and happiness of mankind. When a
judge contemplates such things, ought he not to be more affected with
the cries and lamentations of these sufferers, than with the intreaties
and affliction of a wretch, who has been the author of so many evils,
and whose misery and distress has been brought upon himself, by his own
outrages and misdeeds?
XXII. It may be replied to this, that these mischiefs can’t be remedied
by the execution of the man, and that putting him to death, will be only
adding a new tragedy to those already exhibited; but have patience.
Although it is true, that this will not remedy the mischiefs that
are past, it will deter others from committing the like offences for
the future. The pardoning crimes, operates like a contagion; and the
impunity of a delinquent, inspires others with boldness, and infects
them with the inclination of becoming delinquents also; on the contrary,
by punishing such a man, you strike terror into ill-intentioned people,
and prevent the distresses of thousands; and although you can’t remedy
the misfortunes of the innocent persons who have already been injured,
you may prevent the like mischiefs from being done to an infinite number
of others. Let a judge now weigh all these things, and then determine,
whether advancing the public good, and doing justice to these injured
people, ought not more to excite his compassion, than that devil in human
shape who awaits the execution of his sentence; and finally, I must
observe to him, that if he lets such a miscreant go unpunished, those
very innocent people whom he has injured, will implore the justice of
heaven against him for having pardoned so horrid a wretch.