Article 2, Section 2, Clause 1

Document 23

James Wilson, Executive Department, Lectures on Law

1791Works 2:442--44

He has power to grant reprieves and pardons for offences against the United States, except in cases of impeachment.

To prevent crimes, is the noblest end and aim of criminal jurisprudence. To punish them, is one of the means necessary for the accomplishment of this noble end and aim.

The certainty of punishments is of the greatest importance, in order to constitute them fit preventives of crimes. This certainty is best obtained by accuracy in the publick police, by vigilance and activity in the executive officers of justice, by a prompt and certain communication of intelligence, by a proper distribution of rewards for the discovery and apprehension of criminals, and, when they are apprehended, by an undeviating and inflexible strictness in carrying the laws against them into sure and full execution.

All this will be readily allowed. What should we then think of a power, given by the constitution or the laws, to dispense with accuracy in the public police, and with vigilance, vigour, and activity in the search and seizure of offenders? Such a power, it must be admitted, would seem somewhat extraordinary.

What, it will next be asked, should we think of a power, given by the constitution or the laws, to dispense with their execution upon criminals, after they have been apprehended, tried, convicted, and condemned? In other words--can the power to pardon be admissible into any well regulated government? Shall a power be given to insult the laws, to protect crimes, to indemnify, and, by indemnifying, to encourage criminals?

From this, or from a similar view of things, many writers, and some of them very respectable as well as humane, have been induced to conclude, that, in a government of laws, the power of pardoning should be altogether unknown.

Would you prevent crimes? says the Marquis of Beccaria: let the laws be clear and simple: let the entire force of the nation be united in their defence: let them, and them only, be feared. The fear of the laws is salutary: but the fear of man is a fruitful and a fatal source of crimes. Happy the nation, in which pardons will be considered as dangerous! Clemency is a virtue which belongs to the legislator, and not to the executor of the laws; a virtue, which should shine in the code, and not in private judgment. The prince, in pardoning, gives up the publick security in favour of an individual: and, by his ill judged benevolence, proclaims an act of impunity.

With regard, says Rousseau, to the prerogative of granting pardon to criminals, condemned by the laws of their country, and sentenced by the judges, it belongs only to that power, which is superiour both to the judges and the laws--the sovereign authority. Not that it is very clear, that even the supreme power is vested with such a right, or that the circumstances, in which it might be exerted, are frequent or determinate. In a well governed state, there are but few executions; not because many are pardoned; but because there are few criminals. Under the Roman republick, neither the senate nor the consuls ever attempted to grant pardons: even the people never did this, although they sometimes recalled their own sentence.

In Persia, when the king has condemned a person, it is no longer lawful to mention his name, or to intercede in his favour. Though his majesty were drunk and beside himself; yet the decree must be executed; otherwise he would contradict himself; and the law admits of no contradiction.

"Extremes, in nature, equal ends produce;" so in politicks, as it would seem.

The more general opinion, however, is, that in a state, there ought to be a power of pardoning offences. The exclusion of pardons, says Sir William Blackstone, must necessarily introduce a very dangerous power in the judge or jury, that of construing the criminal law by the spirit instead of the letter; or else it must be holden, what no man will seriously avow, that the situation and circumstances of the offender (though they alter not the essence of the crime) ought to make no distinction in the punishment.

I cannot, upon this occasion, enter into the discussion of the great point suggested and decided, in a very few words, by the learned Author of the Commentaries--that judges and juries have no power of construing the criminal law by the spirit instead of the letter. But I cannot, upon any occasion, suffer it to pass under my notice, without entering my caveat against implicit submission to this decision. I well know the humane rule, that, in the construction of a penal law, neither judge nor jury can extend it to facts equally criminal to those specified in the letter, if they are not contained in the letter. But I profess myself totally ignorant of any rule--I think it would be an inhuman one--that the letter of a penal law may be carried beyond the spirit of it; and it may certainly be carried by the letter beyond the spirit, if judges and juries are prohibited, in construing it, from considering the spirit as well as the letter. But to return to our present subject.

The most general opinion, as we have already observed, and, we may add, the best opinion, is, that, in every state, there ought to be a power to pardon offences. In the mildest systems, of which human societies are capable, there will still exist a necessity of this discretionary power, the proper exercise of which may arise from the possible circumstances of every conviction. Citizens, even condemned citizens, may be unfortunate in a higher degree, than that, in which they are criminal. When the cry of the nation rises in their favour; when the judges themselves, descending from their seats, and laying aside the formidable sword of justice, come to supplicate in behalf of the person, whom they have been obliged to condemn; in such a situation, clemency is a virtue; it becomes a duty.

But where ought this most amiable prerogative to be placed? Is it compatible with the nature of every species of government? With regard to both these questions, different opinions are entertained.

With regard to the last, the learned Author of the Commentaries on the laws of England declares his unqualified sentiment--"In democracies, this power of pardon can never subsist; for there nothing higher is acknowledged than the magistrate, who administers the laws: and it would be impolitick for the power of judging and of pardoning to centre in one and the same person. This would oblige him (as the President Montesquieu observes) very often to contradict himself, to make and unmake his decisions: it would tend to confound all ideas of right among the mass of the people; as they would find it difficult to tell, whether a prisoner were discharged by his innocence, or obtained a pardon through favour. In Holland, therefore, if there be no stadtholder, there is no power of pardoning lodged in any other member of the state.

"But in monarchies, the king acts in a superiour sphere; and though he regulates the whole government as the first mover, yet he does not appear in any of the disagreeable or invidious parts of it. Whenever the nation see him personally engaged, it is only in works of legislature, magnificence, or compassion."

Let us observe, by the way, the mighty difference between the person described by Selden, as the first magistrate among the Saxons, and him described by Sir William Blackstone, as the monarch of England since that period. The former was set in regular motion by the laws: the latter is the first mover, who regulates the whole government.

Let me also repeat here, what has been mentioned in another place. One of the most enlightened writers on English jurisprudence imagines, that the power of pardoning is a power incommunicable to the democratical species of government. For the western world new and rich discoveries in jurisprudence have been reserved. We have found, that this species of government--the best and the purest of all--that, in which the supreme power remains with the people--is capable of being formed, arranged, proportioned, and organized in such a manner, as to exclude the inconveniences, and to secure the advantages of all the others.

Why, according to Sir William Blackstone, can the power to pardon never subsist in a democracy? Because, says he, there, nothing higher is acknowledged, than the magistrate, who administers the laws. By pursuing the principle of democracy to its true source, we have discovered, that the law is higher than the magistrate, who administers it; that the constitution is higher than both; and that the supreme power, remaining with the people, is higher than all the three. With perfect consistency, therefore, the power of pardoning may subsist in our democratical governments: with perfect propriety, we think, it is vested in the president of the United States.

The Founders' Constitution
Volume 4, Article 2, Section 2, Clause 1, Document 23
The University of Chicago Press

The Works of James Wilson. Edited by Robert Green McCloskey. 2 vols. Cambridge: Belknap Press of Harvard University Press, 1967.

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