Article 2, Section 2, Clause 1

Document 26

William Wirt, Pardons

30 Mar. 18201 Ops. Atty. Gen. 341

The power of pardon, as given by the constitution, is the power of absolute and entire pardon. On the principle, however, that the greater power includes the less, I am of opinion that the power of pardoning absolutely includes the power of pardoning conditionally. There is, however, great danger lest a conditional pardon should operate as an absolute one, from the difficulty of enforcing the condition, or, in case of a breach of it, resorting to the original sentence of condemnation; which difficulty arises from the limited powers of the national government. For example: you could not pardon on a condition to be enforced by the officers of a State government--as, for instance, working at the wheelbarrow in the streets of Baltimore, under the superintendence of the town officers--because you have no political connexion with these officers, and, consequently, no control over them. But suppose a pardon granted on a condition to be executed by officers of the federal government--as, for example, to work on a public fortification--and suppose this condition violated, by running away; where is the power of arrest, in these circumstances, given by any law of the United States? And suppose the arrest could be made; where is the clause in any of our judiciary acts that authorizes a court to proceed in such a state of things? And, without some positive legislative regulation on the subject, I know that some of our federal judges would not feel themselves at liberty to proceed de novo on the original case. It is true, the King of England grants such conditional pardons by the common law; but the same common law has provided the mode of proceeding for a breach of the condition on the part of the culprit. We have no common law here, however; and hence arises the difficulty.

I understand from Judge Duvall that convicts have been pardoned by the President of the United States on condition of joining the navy of the United States: evidence of which, if it be so, may, I presume, be found in the Department of State. This is a safe and practicable condition; for although in case of desertion the original sentence of condemnation could not be resorted to, yet the new offence of desertion leads to the same catastrophe. If a condition can be devised whose execution would be certain, I have no doubt that the President may pardon on such condition. All conditions precedent would be of this character; e. g., pardon to a military officer under sentence of death, on the previous condition of resigning his commission.

On the second question, whether pardon can precede condemnation, I am of the opinion that the President may, if he chooses, grant such pardon. There is nothing in the terms in which the power of pardon is granted which requires that it shall be preceded by a sentence of conviction on the verdict of a jury. There is nothing in the force of the term pardon which implies a previous condemnation. A pardon pre-supposes an offence, and nothing more. If the party confesses his guilt, every degree of certainty as to the fact of the perpetration of the offence is gained that a trial could gain; because, if he were arraigned and pleaded guilty, no jury would be empannelled, and no evidence would be heard in the case, but judgment would be entered on his own plea. But where a pardon is granted on the voluntary confession of one who has not been indicted, the confession should be in writing, and the pardon founded on the specific offence confessed; in other words, it should be a special pardon, so as not to protect the party against a prosecution for any more aggravated offence than he has thought proper to confess. And it is proper to suggest, further, that it would be much safer, as a general rule, to require a previous trial and condemnation; because all previous pardons must be granted on ex parte representations, by which the President may be deceived; whereas, on a full trial on the plea of not guilty, the court and jury will never fail to recommend to mercy, if there be any ground for such recommendation; and the President will thus be placed on a sure footing. The latter course, too, so far as I am informed, is more consonant with the general practice both of the State and federal governments, and is least exposed to discontent and censure, of which there is always danger from the adoption of a new, although a legal course.

The Founders' Constitution
Volume 4, Article 2, Section 2, Clause 1, Document 26
The University of Chicago Press

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