Historical Background on Pardon Power

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Article II, Section 2, Clause 1:

The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States; he may require the Opinion, in writing, of the principal Officer in each of the executive Departments, upon any Subject relating to the Duties of their respective Offices, and he shall have Power to grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment.

The presidential power to “grant [r]eprieves and [p]ardons” is, at its core, the authority to grant relief from the consequences of a criminal act.1 The President’s authority under Article II, Section 2 encompasses several distinct forms of relief that may be temporary or permanent, partial or wholesale, and may be granted at any time after alleged commission of a federal crime.2

The broad concept of governmental authority to provide relief from criminal punishment has deep historical roots.3 The power vested in the President by the Constitution traces its origins to authority held by the English Crown,4 leading the Supreme Court to look to legal principles underlying the latter in interpreting the scope of the former.5 A “prerogative of mercy” held by the King appeared during the reign of King Ine of Wessex (688–725 A.D.)6 and by 1535 had been declared by Parliament, during the reign of King Henry VIII (1509–1547 A.D.), as a right exclusive to the Crown.7 Though broad in application, the power as it existed through the colonial period did have legal limits, which grew in number in response to perceived abuses of the King’s authority.8 For instance, a pardon could not impair certain rights of third parties9 and, by act of Parliament in 1701, pardons could not be pleaded to bar impeachment (though a pardon following sentence was still available).10

Prior to the American Revolution, the King’s pardon authority applied in the American colonies through delegation to colonial authorities.11 The English legal tradition of pardon then directly influenced the framers of the U.S. Constitution following independence.12 The two major plans offered at the Constitutional Convention—the Virginia and New Jersey Plans—did not address pardons.13 In suggested amendments to the Virginia Plan, however, Alexander Hamilton included a pardon power vested in an “Executive authority” that could be exercised over “all offences except Treason,” with a pardon for treason requiring Senate approval.14 The first report of the Committee of Detail included a proposed provision giving the President power to grant reprieves and pardons, with the only exception being that a pardon would “not be pleadable in bar of an impeachment.” 15

There was little debate at the Constitutional Convention of the pardon power,16 though several exceptions and limitations were proposed. Edmund Randolph proposed reincorporating an exception for cases of treason, arguing that extending pardon authority to such cases “was too great a trust,” that the President “may himself be guilty,” and that the “Traytors may be his own instruments.” 17 George Mason likewise argued that treason should be excepted for fear that the President could otherwise “frequently pardon crimes which were advised by himself” to “stop inquiry and prevent detection,” eventually “establish[ing] a monarchy, and destroy[ing] the republic.” 18 James Wilson responded to such arguments by pointing out that if the President were himself involved in treasonous conduct, he could be impeached.19 Randolph’s motion was defeated by an 8-2 vote, with one divided.20 Another proposal would have made reprieves and pardons available only after conviction.21 However, when James Wilson pointed out that pre-conviction pardons might be needed to secure accomplice testimony, the motion to add the language was withdrawn.22

Additional proposals and discussion at the Constitutional Convention centered on what role, if any, the legislature should play in the pardon power’s exercise. For instance, during debate of Edmund Randolph’s proposal to except treason, James Madison expressed a preference for Senate consultation in such cases.23 Others, however, conveyed unease at the prospect of giving the legislature a role in the pardon process, arguing that a body “governed too much by the passions of the moment” was “utterly unfit for the purpose” and that such a role would be inconsistent with the constitutional separation of powers.24 Separately, Roger Sherman proposed making reprieves applicable only until the ensuing Senate session and requiring Senate consent for all pardons.25 Sherman’s motion was defeated by a vote of 8-1.26

During the same session, the final language of the impeachment exception— “except in cases of impeachment” —was added without noted discussion, supplanting proposed language more closely mirroring the English limitation that a pardon should “not be pleadable in bar.” 27 It appears to have been understood that, in its final form, the impeachment exception did not permit pardon following conclusion of impeachment proceedings (as had been the case under English law)—in a pamphlet published during the ratification debates, James Iredell noted that the king “may pardon after conviction, even on an impeachment; which is an authority not given to our President, who in case of impeachments has no power either of pardoning or reprieving.” 28

In the Federalist No. 74, Alexander Hamilton maintained that the broad, Executive-held pardon power encompassed in the Constitution was desirable, arguing such a power “should be as little as possible fettered or embarrassed” to ensure “easy access to exceptions in favour of unfortunate guilt.” 29 Hamilton also averred that locating the power solely with the President would lead to its most beneficial exercise, as a single person would be “a more eligible dispenser of the mercy of the government than a body of men” who “might often encourage each other in an act of obduracy, and might be less sensible to the apprehension of suspicion or censure for an injudicious or affected clemency.” 30 With respect to concerns that cases of treason should not be pardonable or should be dependent on legislative assent, Hamilton raised several points in response, including (1) treason might often be connected with sedition involving a broader portion of the community, in which case “the representation of the people [might be] tainted with the same spirit which had given birth to the offence” 31 ; (2) during an insurrection or rebellion, a “well-timed” offer of pardon to insurgents might be necessary but could be stymied if it were necessary to convene the legislature and obtain its sanction;32 and (3) the exception for impeachment was sufficient to protect against abuses of the pardon power related to potentially treasonous conduct in which the President himself was implicated, as he “could shelter no offender, in any degree, from the effects of impeachment and conviction.” 33

1: See, e.g., Biddle v. Perovich, 274 U.S. 480, 486 (1927) (stating that a pardon “is the determination of the ultimate authority that the public welfare will be better served by inflicting less than what the judgment fixed” ).
2: See ArtII.S2.C1.3.5 Scope of Pardon Power.
3: See 3 Dep’t of Just., The Attorney General’s Survey of Release Procedures 2–13 (1939) (discussing pardon principles under Mosaic, Greek, and Roman law).
4: Schick v. Reed, 419 U.S. 256, 260 (1974) (recognizing that the Framers “were well acquainted with the English Crown authority to alter and reduce punishments as it existed in 1787” ).
5: United States v. Wilson, 32 U.S. 150, 160 (1833) ( “As this 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.” ).
6: 1 Benjamin Thorpe, Ancient Laws and Institutes of England 46 (1840) (reflecting law “of fighting” in the Laws of King Ine: “If any one fight in the king’s house, let him be liable in all his property, and be it in the king’s doom whether he shall or shall not have life” ).
7: 4 William Blackstone, Commentaries on the Laws of England 397 (1765) (recognizing declaration in statute during reign of King Henry VIII that “the king hath the whole and sole” power to pardon).
8: Schick, 419 U.S. at 260–61 (referring to “gradual contraction” or English pardon power through “specifically defined” legal limits “as potential or actual abuses were perceived” ).
9: E.g., 4 Blackstone, supra note 7, at 398 ( “Neither . . . can the king pardon an offence against a popular or penal statute after information brought; for thereby the informer hath acquired a private property in his part of the penalty.” ).
10: Id. at 399–400.
11: See, e.g., 7 Francis Newton Thorpe, American Charters, Constitutions and Organic Laws 3800–01 (1909) (granting, in Second Charter of Virginia from 1609, “full and absolute Power and Authority to correct, punish, pardon, govern, and rule all” subjects).
12: E.g., 3 Joseph Story, Commentaries on the Constitution of the United States § 1496 (1833) (noting that exception for impeachment “was probably borrowed” from England).
13: 1 The Records of the Federal Convention of 1787, at 20–23 (Max Farrand ed., 1911) [hereinafter Farrand’s Records] (Virginia Plan, in Madison’s notes); Id. at 242–45 (New Jersey Plan, in Madison’s notes).
14: Id. at 292.
15: 2 Farrand’s Records, supra note 13, at 185.
16: Schick v. Reed, 419 U.S. 256, 262 (1974).
17: 2 Farrand’s Records, supra note 13, at 626 (Madison’s notes).
18: 3 The Debates in the Several State Conventions, on the Adoption of the Federal Constitution, As Recommended by the General Convention at Philadelphia in 1787, at 497 (Jonathan Elliot ed., 1836).
19: 2 Farrand’s Records, supra note 13, at 626 (Madison’s notes).
20: Id. at 627.
21: Id. at 426.
22: Id.
23: Id.
24: Id. at 626.
25: Id. at 419.
26: Id.
27: Id.
28: Pamphlets on The Constitution of the United States 351 n.* (P. Ford ed., 1888).
29: The Federalist No. 74 (Alexander Hamilton).
30: Id.
31: Id.
32: Id.
33: The Federalist No. 69 (Alexander Hamilton).