Article 2, Section 2, Clause 1

[Volume 4, Page 23]

Document 28

John Macpherson Berrien, Pardons before Conviction

12 Oct. 18292 Ops. Atty. Gen. 275

Sir: I have carefully examined the memorial of Abel S. Dungan, and the accompanying documents, (which are herewith returned;) and I have now the honor to state to you such reflections as have occurred to me on the perusal.

A variety of considerations seem to me to render it inexpedient, generally, to interpose the pardoning power previously to trial. It is not denied, however, that cases may exist in which such an interposition would be proper; and it is admitted that the case presented, on the evidence furnished by the memorialist, is a strong one. The application seems to me, however, to be premature; for the reasons which I will proceed to state.

At the May term of the circuit court of the United States for the district of Maryland, in the current year, an indictment was found against the memorialist for murder, on the testimony of three witnesses. The next session of that court will be held in December; and, alleging that he cannot safely proceed to trial in the absence of witnesses whom he states to be important, and that the United States will probably be unprepared for trial from a similar cause, the memorialist asks from the President, in consideration of the difficulty of obtaining a trial at any certain time, that he will examine the evidence submitted, and grant a nolle prosequi. As a further inducement to this, he alleges that the absent witnesses are seafaring men, whose return is uncertain; and that he is himself prevented by the pendency of this prosecution from embarking on any voyage, and thereby from earning a subsistence for his family.

These suggestions will be entitled to consideration, if, at the next term of the court, a trial cannot be had, but, as that will speedily occur, it seems to me that it would be improper, by any previous interposition of the pardoning power, to anticipate the state of things which may then exist. In the mean time, I would respectfully recommend that the memorial and accompanying documents be laid before the district attorney of Maryland, and that he be instructed to communicate any information in his possession relating to this case, which may, in his opinion, be assistant to the Executive of the United States in deciding on this application.

The Founders' Constitution
Volume 4, Article 2, Section 2, Clause 1, Document 28
The University of Chicago Press