Pardon Power, the Early Years of the Republic
Posted in: Justice Department, Legal
So, my research to date has taught me a few things about pardons. First, pardons in advance of conviction or even charge existed in the hundreds, maybe thousands in the early years of the Republic. Surprised to read that? Don’t be.
At the very birth of our nation, George Washington used the pardon power to heal the differences between the peoples by pardoning all the British loyalists, John Adams pardoned the insurrectionists in the Whiskey Rebellion including fugitives, John Adams also pardoned the protesters in Fries Rebellion, Abraham Lincoln pardoned the rebels from the civil war, Jimmy Carter pardoned fugitive Viet Nam draft dodgers living in Canada.
Do you see a pattern here? All of these, though involving pre-indictment status and sometimes even fugitive status are ALL political pardons. The people are only criminals because they are on the losing side of political struggle (and yes, I consider Viet Nam war opposition to be a political struggle). These were not pardons of what we normally consider to be criminal behavior.
Pardons of garden variety criminals were treated much differently.
In US v. Wilson, 32 US 150 (1833), the Supreme Court established, inter alia, the principle that to be effective, a pardon must both be delivered to the criminal and accepted by the criminal.
A pardon is a deed, to the validity of which delivery is essential, and delivery is not complete without acceptance. It may then be rejected by the person to whom it is tendered, and if it be rejected, we have discovered no power in a court to force it on him.
Id.at 161.This case involved a Pardon issued by Andrew Jackson and had a lot of other issues relating to double jeopardy and pleading tactics, but there was one other nugget that I found intriguing–SCOTUS said that courts are required to "expound" on pardons. This seems to directly contradict the oft stated notion, that pardons are "unreviewable".
The pardon may possibly apply to a different person or a different crime. It may be absolute or conditional. It may be controverted by the prosecutor, and must be expounded by the court
Id. at 150 [emphasis added].
Ex Parte Wells, 59 U.S. (18 How.) 307 (1855), stands for the proposition that the president can make his pardon conditional. In Wells, the president pardoned the criminal from the death sentence on condition of a term of life in prison. Thereafter, the criminal tried to contest his punishment of life in prison. SCOTUS found that when you accept the deal, you accept the deal, so you cannot accept the benefit of the pardon and then challenge the conditions that go with it.
All in all, there seems to have been quite a bit of SCOTUS review and passing on pardons during the early years of the republic. So, how did we get to our present state of affairs, where Mr. Unitary Executive seems to think he can do whatever he pleases with the pardon power and there’s nothing anyone can do about it?
I think that most of the "presidential pardon is unreviewable" stuff seems to have stemmed from a case arising out of the aftermath of the civil war, Ex parte Garland, 71 U.S. (4 Wall.) 333(1866). As I told you, rebels were pardoned after the Civil War, but Congress then passed a law that provided
act of Congress of January 24th, 1865, providing that, after its passage, no person shall be admitted as an attorney and counselor to the bar of the Supreme Court, and, after March 4th, 1865, to the bar of any Circuit or District Court of the United States, or Court of Claims, or be allowed to appear and be heard by virtue of any previous admission, or any special power of attorney, unless he shall have first taken and subscribed to the oath prescribed in the act of July 2d, 1862 — which latter act requires the affiant to swear or affirm that he has never voluntarily borne arms against the United States since he has been a citizen thereof, that he has voluntarily given no aid, countenance, counsel, or encouragement to persons engaged in armed hostility thereto, that he has neither sought nor accepted, nor attempted to exercise the functions of any office whatever under any authority or pretended authority in hostility to the United States, and that he has not yielded a voluntary support to any pretended government, authority, power, or constitution within the United States hostile or inimical thereto
Garland had been a lawyer, duly admitted to practice before the Civil War. During the rebellion, he became a legislator in the Confederate Congress. After the war, he –along with a gajillion others–got a pardon and he applied to be re-admitted to practice law by attaching a copy of his pardon to the written oath.
SCOTUS, correctly in my view, decided that the Congressional Act which required the oath of no prior rebellion was an ex post facto punitive law and therefore unconstitutional. Pardon or no pardon, Garland did not need to take the oath, because the oath was unconstitutional. SCOTUS need not have gone farther.
However, the Justices obviously saw Congress’s attempt to noodle with the rules for attorney admissions as a direct assault on the courts.
The right of an attorney and counselor, acquired by his admission, to appear for suitors and to argue causes, is not a mere indulgence — a matter of grace and favor — revocable at the pleasure of the court, or at the command of the legislature. It is a right of which he can only be deprived by the judgment of the court, for moral or professional delinquency.
-snip-
By the Judiciary Act of 1789, the Supreme Court has power to make rules and decide upon the qualifications of attorneys.
The language in the parts of the opinion which deal with this Congressional intrusion in a judicial prerogative is MUCH more emotional than the rest of the opinion, and very overblown. However, it is dicta. Having decided the case on the basis that the law at issue was unconstitutional there was no reason to go off editorializing about the expansive nature of Presidential pardon power, which was not being contested. Yet, it is the dramatic, emotional, non-binding, that everyone seems to remember. Stuff like this:
. The power of pardon conferred by the Constitution upon the President is unlimited except in cases of impeachment. It extends to every offence known to the law, and may be exercised at any time after its commission, either before legal proceedings are taken or during their pendency, or after conviction and judgment. The power is not subject to legislative control.
10. A pardon reaches the punishment prescribed for an offence and the guilt of the offender. If granted before conviction, it prevents any of the penalties and disabilities consequent upon conviction from attaching; if granted after conviction, it removes the penalties and disabilities and restores him to all his civil rights. It gives him a new credit and capacity. There is only this limitation to its operation: it does not restore offices forfeited, or property of interests vested in others in consequence of the conviction and judgment.
Oh, and in further support of my view that this quote is non-binding dicta–in the last line, SCOTUS says the pardon cannot restore a lost office. Garland was attempting to regain the lost office of attorney admitted to practice law, which the pardon would not reach according to the last clause in quote above.
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