Page:The American Cyclopædia (1879) Volume XIII.djvu/85

 PARDON PARE T5 which the courts in the particular case sought i to do, and would have done if at the trial the i 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 i letter of the law, yet, could their cases have I been foreseen, would have been perhaps except- ed 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 in- tended 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 gov- , erned state will the sovereign grant dispensa- tion 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 wel- fare, it cannot intrude on private rights. There- fore a pardon which takes away other penal- ties 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 condi- tions, 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 there- from ; 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 rehabili- t he criminal ; but usually the executive clemency consists only in a remission of part 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 enjoy- ment 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 per- haps better to say, it is no pardon at all. It must be remarked, however, that this distinc- tion is not invariably recognized ; yet the de- nial of it seems to have introduced a discord- ance 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 sen- tence," it was held by the court that the par- don, as it was called, removed the sentence and also the infamy which attended the crime, and therefore restored the competency of the wit- ness. But in Massachusetts, in a precisely simi- lar case, that is, where the pardon "remitted the residue of the sentence," the court distin- guished between pardon and the mere annul- ling 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 au- thority to regard the criminal as entirely in- nocent. 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 charac- ter, 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 re- main, the pardon is not complete. A pardon is regarded as a deed ; and delivery and accept- ance of it are essential to its validity in all cases. whether of capital offences or of misdemean- ors. 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 ab- sence of fraud, a pardon once granted and de- livered 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 im- prisonment 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. PARE, Ambroise, a French surgeon, born at Bourg-Hersent, near Laval, in 1517", died in Paris, Dec. 22, 1590. He went to Paris in his 17th year, and his progress in surgical study was so rapid that in 1536 the captain general