"Olive Branch." Header image sourced here.
"The quality of mercy is not strained. |
"Clemence de Lynca Mayta Capac en faveur des Collas" (1737) by Gabriel Francoise Louis Debrie depicts a Native American chief granting clemency to his subjects. Image sourced here.
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What purpose does mercy serve? |
In The Federalist Papers, Alexander Hamilton argued for the necessity of the pardon, stating, "Humanity and good policy conspire to dictate, that the benign prerogative of pardoning should be as little as possible fettered or embarrassed. The criminal code of every country partakes so much of necessary severity, that without an easy access to exceptions in favor of unfortunate guilt, justice would wear a countenance too sanguinary and cruel." According to Hamilton, pardoning is not only a practice that benefits a government, but also a necessity in all attempts of just and benign ruling (1). But the idea of the necessity of the political pardon did not originate with Hamilton; indeed the power of executive pardon had been accepted by various forms of government for centuries before him. The idea first manifested itself in religious belief.
"When they came to the place called the Skull, they crucified him there, along with the criminals—one on his right, the other on his left. Jesus said, 'Father, forgive them, for they do not know what they are doing.'" "Verily, they who have attained to faith, and they who have forsaken the domain of evil and are striving hard in God's cause - these it is who may look forward to God's grace: for God is much-forgiving, a dispenser of grace." |
Pieter van Lastman, David and Uriah (1619). Image sourced here.
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Divine Right and Pardoning Power
Beginning in the Middle Ages, the notion of the ruler as divine gave weight to the power of the executive pardon. If kings had the supposed personal authorization of rule by God, then had they not the ability to see when human laws failed to execute God's will? With this justification, leaders of the church, and eventually the state, granted pardons to those whom they had deemed worthy of forgiveness (2).
A direct example of this religious connection to clemency is the practice of pardon in Brittany originated in the Middle Ages and involves the journey of a processional to the pardon site, which serves as the paying of a penance by the congregation. Maura Coughlin, Ph.D., Associate Professor of Visual Studies and Art History at Bryant University, claims that in the act of pardon a "very dispersed Breton population was temporarily united in one place in the profession of faith to a saint or holy place" (3). The pardon ritual not only had value in forgiving individuals for their sins but also in fostering a sense of community among the congregation.
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"Pardon in Brittany" (1896) by Gaston La Touche. Image sourced here.
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“Many that live deserve death. And some that die deserve life. Can you give it to them? Then do not be too eager to deal out death in judgement. For even the very wise cannot see all ends."
J.R.R. Tolkien, The Fellowship of the Ring
Pardoning and the U.S. Constitution
In Commentaries on the Law of England, the famed English codifier Sir William Blackstone described the pardoning power as "one of the great advantages of monarchy in general" in which a ruler has the ability "to soften the rigour of the general law." He went on to argue that the pardon had its greatest effect in a monarchy, and not a democracy, given the monarch's ability to "act in a superior sphere" (4). But the successes of clemency had only before been proved largely in the contexts of the church and the monarchy. How could the founders hope to adopt a practice that drew on religious belief for a new born democracy that claimed to be free of despotic and religious rule?
The pardoning power's place in the U.S. Constitution has its foundation in the concept of the lack of confidence in human law, and the need for the power of exceptional mercy. The founders, idealistic as they were, could recognize the flaws of the human condition and saw the need for an unchecked executive pardoning power to alleviate the cruelty of law in extenuating circumstances.
However, some delegates at the Constitutional Convention of 1787 were in disagreement with this view, fearing that the pardon would grant too much power to the executive. Some hoped to institute a system of checks on the president's pardoning power, as there existed in the United States under the Articles of Confederation. For instance, The 1776 Constitution of New Jersey called for a governor to compose a court which was then given the power to grant pardons to individuals they deemed deserving. Though at the 1787 convention founding father Roger Sherman proposed a motion "to grant reprieves until the ensuing session of the Senate, and pardons with consent of the Senate," it was defeated by the vote of eight states to one. The delegates voting against the measure were of the opinion opinion that it would be granting the Senate too much power (5). The debate wore on with an eventual decision to grant the power to pardon to the executive. As seen above, in Article II, Section 2, Clause 1, the American Constitution includes an explicit mention of unchecked presidential pardoning power that is still recognized to this day (6).
However, some delegates at the Constitutional Convention of 1787 were in disagreement with this view, fearing that the pardon would grant too much power to the executive. Some hoped to institute a system of checks on the president's pardoning power, as there existed in the United States under the Articles of Confederation. For instance, The 1776 Constitution of New Jersey called for a governor to compose a court which was then given the power to grant pardons to individuals they deemed deserving. Though at the 1787 convention founding father Roger Sherman proposed a motion "to grant reprieves until the ensuing session of the Senate, and pardons with consent of the Senate," it was defeated by the vote of eight states to one. The delegates voting against the measure were of the opinion opinion that it would be granting the Senate too much power (5). The debate wore on with an eventual decision to grant the power to pardon to the executive. As seen above, in Article II, Section 2, Clause 1, the American Constitution includes an explicit mention of unchecked presidential pardoning power that is still recognized to this day (6).
1. Hamilton, Alexander. "The Avalon Project : Federalist No 74." The Avalon Project : Federalist No 74. Lillian Goldman Law Library, 2008. Web. 10 Dec. 2015. <http://avalon.law.yale.edu/18th_century/fed74.asp>.
2."Pardon." New World Encyclopedia. 24 Mar 2015, 15:45 UTC. 14 Dec 2015, 20:16 <http://www.newworldencyclopedia.org/p/index.php?title=Pardon&oldid=987019>.
3. Coughlin, Maura. "The Spectacle of Piety on the Brittany Coast." The Spectacle of Piety on the Brittany Coast. Cognizant Comm. Corp., 2010. Web. 14 Dec. 2015. <https://www.academia.edu/765231/The_Spectacle_of_Piety_on_the_Brittany_Coast>.
4. Blackstone, William. "Article 2, Section 2, Clause 1: William Blackstone, Commentaries 4:397--402." The Founders' Constitution. University of Chicago Press, 2000. Web. 10 Dec. 2015. <http://press-pubs.uchicago.edu/founders/documents/a2_2_1s17.html>.
5. Duker, William F. "The President's Power to Pardon: A Constitutional History." 18 Wm. & Mary L. Rev. 475, 1977. <http://scholarship.law.wm.edu/wmlr/vol18/iss3/3>.
6. "The Constitution of the United States: A Transcription." National Archives and Records Administration. National Archives and Records Administration. Web. 15 Dec. 2015. <http://www.archives.gov/exhibits/charters/constitution_transcript.html>.
2."Pardon." New World Encyclopedia. 24 Mar 2015, 15:45 UTC. 14 Dec 2015, 20:16 <http://www.newworldencyclopedia.org/p/index.php?title=Pardon&oldid=987019>.
3. Coughlin, Maura. "The Spectacle of Piety on the Brittany Coast." The Spectacle of Piety on the Brittany Coast. Cognizant Comm. Corp., 2010. Web. 14 Dec. 2015. <https://www.academia.edu/765231/The_Spectacle_of_Piety_on_the_Brittany_Coast>.
4. Blackstone, William. "Article 2, Section 2, Clause 1: William Blackstone, Commentaries 4:397--402." The Founders' Constitution. University of Chicago Press, 2000. Web. 10 Dec. 2015. <http://press-pubs.uchicago.edu/founders/documents/a2_2_1s17.html>.
5. Duker, William F. "The President's Power to Pardon: A Constitutional History." 18 Wm. & Mary L. Rev. 475, 1977. <http://scholarship.law.wm.edu/wmlr/vol18/iss3/3>.
6. "The Constitution of the United States: A Transcription." National Archives and Records Administration. National Archives and Records Administration. Web. 15 Dec. 2015. <http://www.archives.gov/exhibits/charters/constitution_transcript.html>.