The Pardon Power

This is not my field of expertise, so my amateur opinion is that of an amateur. Nonetheless, there are conditions and limitations to the Pardon power as expressed in the US Constitution.

The second article of the Constitution of the United States, section two, contains this provision, namely: “The President shall have power to grant reprieves and pardons for offenses against the United States, except in cases of impeachment.”

However, the case law states “The language used in the Constitution as to the power of pardoning must be construed by the exercise of that power in England prior to the Revolution, and in the states prior to the adoption of the Constitution.”

And no exercise of this power, in America since the revolution nor in England before it, allowed for pardons and commutations of speculative crimes for which there is no conviction, no sentence.

Ex Parte Wells, 59 U.S. 307 (1855), which was a case of a man who was granted a conditional pardon,  (his death sentence was commuted to life imprisonment) but argued that such pardons must be absolute, and that therefore he must be set free, as he did not accept the pardon.

The Court in Wells reasoned that the prerevolutionary English interpretation of the law was binding precedent. (In the case of Wells, since the King could grant conditional pardons, hence commute sentences to lesser punishments, without the consent of the pardoned party, so could the President).

Other cases limit this holding, so that a President cannot inflict a pardon on someone simply to strip him of his rights under the Fifth Amendment against self-incrimination, nor to commute the sentence to another punishment nowise authorized by the legislature for that crime.

Chief Justice Marshall, in United States v. Wilson, 32 U.S. 150 (1833) states: “As the power has been exercised from time immemorial by the executive of that nation whose language is our language, and to whose judicial institutions ours bear a close resemblance, we adopt their principles respecting the operation and effect of a pardon, and look into their books for the rules prescribing the manner in which it is to be used by the person who would avail himself of it.”

So what say the English books and rules?

A pardon is said by Lord Coke to be “a work of mercy, whereby the kind, either before attainder, sentence or conviction, or after, forgiveth any crime, offense, punishment, execution, right, title, debt or duty, temporal or ecclesiastical” (3 Inst. 233.)

Ex Parte Wells goes on to quote:

“But to the power of pardoning there are limitations. The King cannot, by any previous license, make an offense dispunishable which is malum in se, i.e. unlawful in itself, as being against the law of nature or so far against the public good as to be indictable at common law. A grant of this kind would be against reason and the common good, and therefore void (2 Hawk.C. 37, § 28)”

Bacon says the power of pardoning is irreparably incident to the Crown, and is a high prerogative of the King. And Comyns, in his digest, says:

“The King, by his prerogative, may grant his pardon to all offenders attainted or convicted of a crime, and that statutes do not restrain the King’s prerogative, but they are a caution for using it well.”

Now, if we take this reading at face value, no pardon can apply to someone not attained nor convicted. Lord Coke says the pardon can be granted either before or after sentencing, but there is no mention of the case where an individual is granted freedom from and and all laws for a given period of time, on a speculative basis, where no charges have been brought, and hence there is no sentence, and my never be.

As best my shallow and incomplete readings on the matter can find, such speculative pardons are utterly outside the ambit of Anglo-American legal tradition, and hence beyond the reach of even a generous interpretation of the Pardon Clause.