PARDON. According to the laws of most countries, a power of pardoning, or remitting the penal consequences of a conviction for crimes, is vested in some person. The utility of such a power has been doubted, upon the ground that it supposes an imperfect system of criminal law, and that every instance of its exercise is the proclamation of an error either in the law itself or in the ad ministration of justice. (Beccaria, chap. 46.1 There is no doubt that the nearer a penal system approaches to perfection, the fewer will be the occasions for resort ing to extraordinary remissions of the executions of the law ; but considering the numerous causes of erroneous deci sion, arising not only from the imperfec tion of laws themselves, but from the infi nite sources of error in the instruments and means by which they are adminis tered, it seems to be desirable that some power should exist which may by timely interference correct error in cases w here it cannot be corrected by any appellate tribunal. At the same time it is evi dent that such a power should be circum scribed and defined, as far as its nature will admit, and exercised with the utmost caution. By the law of England, besides pardons by act of parliament, the power of granting pardons for crimes is exclu sively vested in the king as a branch of his prerogative.
Formerly, Counts Palatine, Lords Marchers, and others who claimed jura regalia by virtue of ancient grants from the crown, assumed the authority to par don crimes ; but by the stat. 27 Henry VIII., c. 24, this power was entirely abolished, and the sole right of remitting the sentence of the laws was permanently vested in the king. The power of par doning is applicable in all cases in which the crown is either concerned in interest or prosecutes for the public. The only exception to this rule is contained in the Habeas Corpus Act (31 Car. II., C. 2, s. 12), by which persons convicted of sign ing commitments of British subjects to foreign prisons are declared to incur the penalties of a pramiunire and to be " in capable of any pardon from the crown.' The crown has however no power to pardon any offence in the prosecution of which a subject has a legal interest, a doctrine laid down by Bracton (lib. iii ,
p. 132). Thus in appeals of death, rob bery, or rape, the king could not pardon the defendant, " because," says Sir Ed ward Coke, " it is the suit of the party to have revenge by death" (3 Inst., 237). Upon the same principle,where an attaiut was brought against a jury who had de livered a false verdict, and the party in whose favour it had been given was joined in the attaint, the king might par don the jury, if convicted, because they were merely subject to an exemplary punishment ; but he could not pardon the party, because he was liable to make re stitution to the plaintiff who prosecuted the attaint. So also in indictments for common nuisances, where the public are interested as individuals or particular classes, or informations upon penal sta tutes, where the penalty or any part of it goes to the informer or the party grieved, the crown cannot pardon the offender. Formerly, the crown appears to have ex ercised without restriction the power of pardoning offenders impeached by the Commons in parliament (Blackstone's Corn., vol. iv., p. 400—Christian's Note); but the lawfulness of the exercise of this power during the proceedings was ques tioned by the House of Commons on the impeachment of the Earl of Danby in, the reign of Charles H. (Howell's State Trials, vol. ii., p. 724); and by the Act of Settlement, 12 & 13 William III., c. 2, it was enacted " that no pardon under the great seal of England shall be pleadable to an impeachment by the Commons in Parliament." This statute however does not affect the power of the crown to par don the offender after he has been found guilty upon the impeachment, and the proceedings are determined.
Au effectual pardon from the crown must apply in express terms to the par ticular offences intended to be pardoned ; and there must be no reasonable intend ment, supplied by the recital in the par don or otherwise, that the crown was de ceived or misled as to any of the circum stances on which the grant was founded. Nor can any grant of a commission or protection by the king amount by plication to a pardon of any offence pre viously committed.