PARDON, the remission, by the power entrusted with the execution of the laws, of the penalty attached to a crime. The right of pardoning is coextensive with the right of punishing. In practice the prerogative is extremely valuable, when used with discretion, as a means of adjusting the different degrees of moral guilt in crimes or of rectifying a miscarriage of justice. By the law of England pardon is the sole prerogative of the king, and it is declared by 27 Hen. VIII. c. 24 that no other person has power to pardon or remit any treasons or felonies whatsoever. This is a position that is based on the theory of English law that all offences are breaches of the king's peace. Thus, the Crown by pardon only remits the penalty for an attack upon itself. The prerogative is in modern times exercised by delegation, the Crown acting upon the representation of the secretary of State for the home department in England and the secretary for Scotland in that country. The prerogative of the Crown is subject to some restrictions : ( r) The committing of a subject of the realm to a prison out of the realm is by the Habeas Corpus Act a praemunire, unpardonable even by the king (31 Car. II. c. 2, S. I 2). (2) The king cannot pardon an offence in a matter of private rather than of public wrong, so as to prejudice the person injured by the offence. Thus a common nuisance cannot be pardoned while it remains unredressed, or so as to prevent an abatement of it. A fine or penalty imposed for the offence may, however, be remitted. (3) The king's pardon cannot be pleaded in bar of an impeachment. This principle, first asserted by a resolution of the House of Commons in the earl of Danby's case (May 5, 1679), forms one of the provisions of the Act of Settlement, 12 and 13 Will. III. C. 2.
Pardon may be actual, conditional or constructive. Actual pardon is by warrant under the great seal, or under the sign manual countersigned by a secretary of State (7 and 8 Geo. IV.
c. 28, s. 13). Constructive pardon is obtained by endurance of the punishment. By 9 Geo. IV. c. 32, s. 3, the endurance of a punishment on conviction of a felony not capital has the same effect as a pardon under the great seal. Further, pardon may be free or conditional. A conditional pardon most commonly occurs where an offender sentenced to death has his sentence commuted to penal servitude or any less punishment. But it of course applies to other cases (see Criminal Law Act 1827, s. 13, and Chil dren Act 1908, s. 84). The condition of his pardon is the endur ance by him of the substituted punishment. The effect of a free pardon, whether actual or constructive, is to put the person par doned in the position of an innocent man; he may have an action against any one thenceforth calling him traitor or felon.
It is obvious that, though the Crown is invested with the right to pardon, this does not prevent pardon being granted by the higher authority of an Act of parliament. Acts of indemnity have frequently been passed, the effect of which is the same as pardon or remission by the Crown. Civil rights are not divested by pardon. The person injured may have a right of action against the offender in spite of the pardon of the latter, if the right of action has once vested, for the Crown cannot affect private rights.
In the United States, the president has authority to pardon all offences against the Government except in case of impeachment. In the States, the governor has the authority, usually acting upon recommendation of a board of pardons, or, as in New Jersey, as a member himself of the board of pardons. In the States, a pardon generally is necessary to restore to a person convicted of a felony and in some cases a misdemeanour, his political rights of voting and holding public office.