Clemency. Favorinus defines it, as an act by which the sovereign relaxes himself as concerns the rigor of law → ; and Charondas calls it a virtue which inclines the prince toward tenderness, toward exercising and easing the rigor of justice with judgment and discretion. [1] These two definitions comprising the same ideas that one ought to have of clemency , are equally good.

In fact, it is a virtue of the sovereign which inclines him to exempt the guilty entirely of punishment, or to moderate it, whether in peace, or in war.

In the last case, clemency bears more often the name moderation , and is a virtue founded upon the laws of humanity, which have among others the advantage of being most suited toward winning over minds. [2] History provides us with numerous examples of this, as well as of contrary actions, which have had the completely opposite effect.

In peacetime, clemency consists of exemption entirely from punishment, when the good of the state permits it, which is also one of the precepts of Roman Law → ; or of lightening this punishment, if there are not very good reasons to the contrary, and this is the second aspect of clemency .

It is not always necessary to punish unremittingly crimes otherwise punishable; there are cases where the sovereign may show grace, and it is here that the sovereign must evaluate the public good, which is the great goal of punishment. Thus if he finds circumstances where in showing grace, one obtains as much or greater utility as in punishing, the sovereign must necessarily exercise clemency . If the crime is hidden, if it is known only to very few people, if there are inconveniences in exposing it, it is not always necessary, and sometimes may be dangerous to publicize it, in punishing it with some penalty. Solon never made a ← law → against parricide. [3] Public utility, which is the measure of penalties, sometimes demands that one offer grace due to circumstances, the great number of the guilty, the causes, the motives which animated them, the times, the places, etc., for one should not exercise justice which is established for the preservation of society to the detriment of the state.

If the sovereign has no strong and compelling reasons to be able to offer grace, he ought to endeavor instead to mitigate the punishment (at least if valid and just reasons do not oppose this entirely, as when there are crimes which violate natural rights and those of human society), because every rigorous punishment has something contrary in itself, if not to justice, at least to humanity. The emperor Marcus Antonius thought as much, and modified his conduct accordingly. [4]

Clemency is opposed to cruelty, to the excesses of rigor, but not to justice, from which it is not very distant, but which it eases, which it tempers; clemency is needed because of human infirmity, and the ease of failing, as Charondas says.

Following the general principles just established, one can see when the sovereign ought to punish, when he ought to mitigate punishment, and when he ought to pardon. Otherwise, while clemency has its dangers, these dangers are very visible; we can readily distinguish it from the weakness that brings the prince into contempt, and from the incapacity to punish, as the illustrious author of the spirit of the laws remarks.

Here is what he says on the matter in this text:

“ Clemency is the distinctive quality of monarchs. In the republic where one has virtue as a principle, it is less necessary. In a state of despotism where fear reigns, it is less in use, because it is necessary to contain state elites with examples of severity. In the monarchies where one is governed by honor, which often demands that which the ← law → upholds, it is more necessary. Disgrace there is equivalent to punishment; the very formalities of judgments are punishments there. It is there that shame comes from all sides to form peculiar types of punishments.

“Elites there are so greatly punished by disgrace, by the often imagined loss of their fortune, their credit, their customs, their pleasures, that rigor in their regard is meaningless; it cannot serve but to deprive subjects of the love they have for the person of the prince, and the respect they ought to have for those who hold office [ les places ].

“One might dispute with monarchs some branch of authority, but almost never authority entirely; And if sometimes they fight for the crown, they do not fight for life.

“So much have they to gain through clemency , so great is the affection which follows it, they attain such glory, that it is almost always a good thing to have occasion to exercise it, and they can almost always do so in our countries.” [5]

It is a happy prerogative which they enjoy, and the characteristic of a good soul when they exercise it. This prerogative is useful and honorable to them, without weakening their authority. I know of no better passage in Cicero’s oration on Ligarius, than the one where he says to Caesar, imploring him to exercise clemency : ‘You have received no greater fortune, than the power of conserving life; nor any greater natural endowment, than the will to do it.”  ^[6]

Notes

1. Favorinus of Arelate was a Roman philosopher who lived during the 1st and 2nd centuries AD; Charondas of Catania, was a celebrated Greek legislator and legal-thinker, possibly of legendary origins, thought to have lived during the 6th or 5th centuries BCE.

2. The concept of the “laws of humanity,” advanced by a number of prominent enlightenment-era legal thinkers, preceded and influenced the later development of formal international humanitarian ← law → . Its meaning is roughly equivalent to the latter.

3. Solon, Athenian statesman and poet of the 7th and 6th centuries.

4. Marcus Antonius (83 — 30 BCE), the Roman emperor also known as Mark Antony in English.

5. For the passage in question, see Montesquieu, The Spirit of the Laws, bk. VI, ch. xxi.

6. Quintus Ligarius was a Roman soldier who was tried (and subsequently acquitted) for treason for attempting to overthrow Julius Caesar. He was later a co-conspirator in Brutus’ successful assassination plot.