Mercy by the Thousands, Denied by One
When a single magistrate casually refuses thousands of pleas for mercy while proclaiming a national faith in “second chances,” the question is not sentiment but whether such prerogative still rests on the consent of free and equal people, or has slipped into arbitrary power no man could approve befo
I begin from the few things here reported as settled. The executive in this republic recently denied about 6,000 clemency applications, even as his own staff had floated a public spectacle of 250 pardons to mark a national anniversary. The administration had, not long before, declared that for 250 years America has stood for the potential of its people and the belief in second chances. I do not know who these 6,000 petitioners were, nor the reasons in each case; that ignorance I must frankly own. But I do know what it means, in any age, when mercy becomes a theatre and refusal becomes routine.
When I wrote in the Second Treatise that political power is a right of making laws with penalties only for the public good, I meant to bind the magistrate no less in his mercies than in his severities. Punishment is not for vengeance but for reparation and restraint; once those ends are served, continued suffering is mere harm. Clemency, in most commonwealths, is left to the executive as prerogative: a power to act without or even against the standing rule when strict execution would thwart the public good. Such power may be needful, for laws are general and cases are particular. Yet because it is discretionary, it must be jealously watched.
Prerogative, as I there argued, is not a natural right of rulers but a trust given by the people to be used only for their benefit, and resumable when abused. Its whole title rests upon necessity and public advantage. First, therefore, those subject to it must have reason to see that it serves the safety of their lives, liberties, and estates. Secondly, it must never harden into a private right in the governor, as if he owned the fortunes of men. Thirdly, it must remain practically revocable, either by law that narrows it or by the people changing those who wield it. Where these conditions fail, what is called prerogative is, in truth, arbitrary power.
Now to deny thousands of clemency petitions at a stroke, whilst entertaining, as a kind of holiday ornament, a smaller number of pardons chosen from above, has the look—at least from the outside—of mercy no longer tied to public rule but to private will. Perhaps each of the 6,000 lacked merit; perhaps each posed some grave danger; perhaps the files showed reasons so compelling that any impartial judge would concur. The difficulty is that the public is given only numbers and rhetoric, not the rule by which those numbers were produced. A man may submit his liberty and estate to a known law; he cannot rationally consent to a lottery.
Some will answer that clemency is a gift, not a right; that no one is injured when the magistrate simply leaves a sentence to run its course. Yet this confounds two things I have always kept distinct. No individual has a claim to pardon as property. But the people, as authors of the constitution, have a claim that the discretionary powers they have placed in the executive shall be used for their common benefit, and not for vanity, spectacle, or partiality. Where the law has empowered one man to open, in hard cases, a path back to liberty, a pattern of blanket refusal can injure the commonwealth by wasting lives that might safely be restored.
Others will say that the executive must be free from meddling, that to hem in this discretion with transparency and standards would unfit him for sudden necessity. I grant that in war or sudden tumult some latitude is unavoidable. Yet here we speak not of instant defence but of measured review of thousands of settled cases. Time exists to articulate standards, to delegate inquiry to impartial boards, to give reasons that any ordinary understanding may follow. To insist on opacity where there is leisure is not prudence; it is merely to insist that the ruler shall be judge in his own case, and that his word alone shall be measure sufficient.
I do not say that a single mass denial of clemency dissolves a government, nor that every hard-hearted use of lawful power is tyranny. Resistance, as I argued, answers only to a long train of abuses tending to the same point: the reduction of a free people under arbitrary power. Yet the careless wielding of mercy is one thread in that train. A nation that glories in second chances but builds a system where thousands hope in one man’s unexplained favour walks close to the line where trust ends and usurpation begins. Free people ought to watch that line with open eyes.
From the works cited
- Second Treatise of Government — Prerogative as revocable emergency discretion — legitimate exactly as long as the public visibly benefits and no longer.
- Second Treatise of Government — Political power defined narrowly as the right to make laws, with penalties, only for the public good — anything beyond that definition must justify itself or stand condemned.