PARDON. According to the laws of most countries, a power of pardoning, or remitting the penal consequences of a conviction for crimes before the judicial tribunals, is vested in the chief magistrate of the state. The utility of such a power has been doubted by judicial writers, upon the ground that it supposes an imperfect system of criminal law, and that every instance of its exercise is the proclama tion of an error either in the law itself or in the administration of justice. ( Beccaria, chap. 46.) There is no doubt that the nearer a penal system approaches to perfection, the fewer will be the occasions for resorting to extrajudicial remissions of the execution of the law : but considering the numerous causes of erroneous decision, arising not only from the imperfection of laws themselves, but from the infinite sources of error in the instruments and means by which they are administered, it seems to be desirable that some power should exist which may by timely interference prevent the occurrence of irremedi able wrong in cases where the error cannot be corrected by any appel late tribunal. At the same time it is evident that such a power should be circumscribed 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 exclusively vested in the sovereign as a branch of the prerogative. [Pazaoravivx.] Formerly, Counts Palatine, Lords Marchers, and others who pos sessed jure regalia, had authority to pardon crimes; but by the etat. 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 crown. The power of pardoning is applicable in all cases in which the crown is either concerned in interest or prosecutes for the public ; the only exception being that contained in the Habeas Corpus Act (31 Car. II., e. 2, a. 12), by which persons convicted of signing commit ments of British subjects to foreign prisons, are declared to incur the penalties of a pram/mire and to be " incapable of any pardon from the crown."
The crown has, moreover, no power to pardon any offence in the prosecution of which a subject has a legal interest, or, as Bracton expresses it, "non potent rex gratiam facerc cum injuries et damno aliorum " (lib. iii., p. 132). Thus in appeals of death, robbery, or rape, the king could not pardon the defendant, " because," says Sir Edward Coke, " it is the suit of the party to have revenge by death" (3 Inst.' 237). Upon the same principle, where an attaint was brought against a jury who had delivered a false verdict, and the party in whose favour it had been 5iven was joined in the attaint, the king might pardon the jury, if convicted, because they were merely subject to an exemplary punishment ; but he could not pardon the party, because the latter was liable to make restitution to the plaintiff who prosecuted the attaint. So also in informations upon penal statutes, 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 exercised without restriction the power of pardoning offenders im. peached by the Commons in parliament ; but the lawfulness of the exercise of this power during the pendency of the proceedings was questioned by the House of Commons on the impeachment of the Earl of Danby in the reign of Charles II. (Howell's ' State Trials,' vol. ii., p. 721); and it was afterwards enacted, by the Act of Settlement, " that no pardon under the great seal of England shall be pleadable to an impeachment by the Commons in Parliament." This statute how ever does not affect the power of the crown to pardon the offender after he has beep found guilty upon the impeachment, and the pro ceedings are determined.
A pardon from the crown to be effectual must apply in express terms to the particular offences intended to be pardoned; and no grant of a commission or protection by the king can amount by implication to a pardon of any offence previously committed.