1. The mild weapon of the crown: making the constitutional value of pardon with public opinion and the interference of the moderating power over the judiciary (Brazil, 1823-1889).
- Author
-
de Almeida Costa, Arthur Barrêtto
- Subjects
- *
MERCY , *PUBLIC opinion , *JUSTICE administration , *CONSTITUTIONAL law , *CRIMINAL law , *SEPARATION of powers , *CLEMENCY - Abstract
Pardon is an ambivalent tool, with roots both in criminal and constitutional law. This paper aims to understand the constitutional characteristics of royal clemency in imperial Brazil. I analyzed two of these features that can be deemed more prominent. First, I looked into the public opinion, which was one of the crucial mechanisms of 19th-century constitutional theory and investigated how civil society interacted with the state's impulses regarding pardon. The main aspects I dealt with were discussions on the legitimacy of the very existence of royal mercy and the pertinence of specific pardons. Second, I investigated how the monarch interfered in certain parts of Brazilian legislation to push it into a better performance. The main aspect handled with recourse to pardon was the functioning of the jury. The special place of pardon in Brazilian 19th-century constitutional landscape can only be understood taking into consideration its connection with the particular Brazilian separation of powers, which granted the emperor a unique moderating power. The main conclusions were that the public opinion, expressed mainly in the press and the parliament, had an important role in both shaping pardon and legitimizing it; and that the emperor, through the moderating power, used pardon to cope with some malfunctioning of Brazilian legislation. [ABSTRACT FROM AUTHOR]
- Published
- 2021
- Full Text
- View/download PDF