Pardon, in its proper sense, the act of grace by which the sovereign declares that the guilty shall be regarded as innocent. In human political societies, this effect is accomplished, not by absolving the moral guilt of the criminal, but by removing or withholding those penal consequences which the law attaches to crime. Chief Justice Marshall's definition may not be altogether exact, but it is often quoted in our law books, and expresses the usual acceptation of the word. " A pardon," he says, " is an act of grace, which, proceeding from the power intrusted with the execution of the laws, exempts the individual on whom it is bestowed from the punishment which the law inflicts for a crime which he has committed." A pardon is then an act not of justice, but of grace. Pardon necessarily implies punishment, or the liability thereto; and punishment supposes guilt, ascertained in the due course of law, and justly visited with a penalty. For, as in the state it must be the theory that the courts have the monopoly of doing justice, so theoretically it must be assumed that he is guilty whom the courts declare to be so, and that the penalty is justly inflicted. If the punishment of such a one be but an act of justice, the remission of it, or a pardon, must be an act of clemency or grace.
But it is the chief end of punishment to advance the public welfare. When then the commonwealth will derive more or as much advantage, or even will suffer nothing, from the remission of the punishment, this may well be granted; and this consideration ought to be the measure and guide of the pardoning power. Forgiveness must come of course from the one who is injured, and that, in all states, is the sovereign. The ultimate power, the real sovereignty, whether it reside in a king or in the people, as it is the source of the law, so must it be the source of grace to him who breaks the law. In the forms of government which have most prevailed, the crowned prince has been regarded as the sovereign, and pardon has always been his prerogative. In democratic states, the people are sovereign; but they have generally delegated the power of pardon to him who is placed at the head of the state, that is, to the chief executive magistrate, though in the absence of such delegation the power would pertain to the legislature. The constitution of the United States gives the power to the president alone. In some of the states it is to be exercised with the advice and consent of the council. Sometimes, where it is reserved to the legislature, the governor can only reprieve temporarily.
A pardon presupposes guilt, and though it is now well settled that it may be granted as well before trial and conviction as afterward, yet in every case it is to defeat a punishment which the law has prescribed for an act committed, and therefore to defeat and annul so far the law itself. Owing to the imperfection of the laws themselves, or to the imperfect application of good laws, an innocent man may be condemned to punishment, or a slight offence may be visited with too severe a penalty. But remission of the sentence in these cases, whole or partial, according as the sentence is wholly or partially unjust, though regarded as an act of clemency, is, in the one class of cases, only that very justice which the courts in the particular case sought to do, and would have done if at the trial the proofs of innocence had been as clear as they now are, and in other cases it is an equitable indulgence to those who, though within the letter of the law, yet, could their cases have been foreseen, would have been perhaps excepted from its general rules, or who ought to have been excepted, but could never be, because of the necessary imperfection of legislation.
But even in these cases, when justice alone is intended to be done, where the innocent, not the guilty, is to be relieved from penalties, it is hardly possible that the so-called pardoning power shall always be judiciously exercised. - The indulgence of pardon extends only to crimes already committed. In no well governed state will the sovereign grant dispensation to crimes to be committed in the future; and in republics, unless the people, which is the sovereign, have expressly delegated such an authority, the executive, which is usually invested with the power of pardon, has no such right of dispensation. Further, as pardon is measured by and regards only the public welfare, it cannot intrude on private rights. Therefore a pardon which takes away other penalties cannot divest a private citizen's right in a forfeiture under a penal statute, or his share in the penalty which such statute secures to the informer. On the principle that the greater power includes the less, it is well established, though it has been sometimes questioned, that the power of pardoning absolutely includes that of pardoning conditionally. Any conditions, therefore, precedent or subsequent, may be annexed to the offer of a pardon; and on the performance of these the validity of the grant may be made to depend.
Pardons are therefore sometimes very properly granted on condition that the subjects of them, who have been led into criminal acts by indulgence in intoxicating drinks, shall wholly abstain therefrom; and sometimes, very improperly and in utter disregard of state comity, on condition that they shall leave the state. - In regard to the legal effect of a pardon, it may be observed that in its proper sense it completely rehabilitates the criminal; but usually the executive clemency consists only in a remission part of of the sentence. Now, if the judgment which the law passed upon the offender consisted exclusively in fine or imprisonment, remission of these does in fact restore him to full enjoyment of all his civil rights. But when infamy attaches by particular laws to the conviction, as it does in the case of felonies, forgiveness of the fine or imprisonment only by no means makes the pardoned equal with the innocent; in short, the pardon is partial, or it were perhaps better to say, it is no pardon at all. It must be remarked, however, that this distinction is not invariably recognized; yet the denial of it seems to have introduced a discordance into the decisions of the courts.
Thus, in a Pennsylvania case, where the president of the United States had " remitted" to the party offered as a witness " the remainder of his sentence," it was held by the court that the pardon, as it was called, removed the sentence and also the infamy which attended the crime, and therefore restored the competency of the witness. But in Massachusetts, in a precisely similar case, that is, where the pardon "remitted the residue of the sentence," the court distinguished between pardon and the mere annulling of a sentence of imprisonment, holding that the latter could not remove infamy and the consequent incapacity, because that could be effected only by an express forgiveness of the offence, that is, by words which distinctly imported a restoration to all civil rights, and showed the willingness of the pardoning authority to regard the criminal as entirely innocent. Quoting the language of an approved author on criminal practice, the court said the pardon, or rather remission of the punishment only, does not remove the blemish of character, and so does not revive competency. There must be full and free pardon of the offence, before these can be removed or revived.
So the English law held that when attainder wrought corruption of blood, the party was not completely reinstated by the king's charter of pardon; and generally it has been laid down in this country, that commutation to a shorter period than a life term to the state prison (which in the American law generally works the civil death of the criminal) does not restore marital rights, or entitle the party to the guardianship of his children. Where these disabilities remain, the pardon is not complete. - A pardon is regarded as a deed; and delivery and acceptance of it are essential to its validity in all cases, whether of capital offences or of misdemeanors. It has therefore been held that where the president had granted a pardon which had been put into the hands of the marshal for delivery to the criminal in his custody, the authority to deliver it might be countermanded at any time before delivery had actually been made, and the pardon thereby become ineffectual. It has also been held in Pennsylvania that a pardon obtained by means of forged papers might be treated as void for the fraud; but in the absence of fraud, a pardon once granted and delivered without condition can be recalled by no authority whatever. - A peculiar remission of punishment has become established in some of the states, by statutes which permit prison authorities to shorten the term of convict imprisonment for good behavior in confinement, the extent of the remission being graduated by fixed rules.
This obviously is not pardon, and the laws which permit it do not encroach upon any exclusive power of pardon which may have been conferred upon the governor.