Fourth Ebsworth Memorial Lecture “I beg your Pardon”  2009

By Lord Bingham of Cornhill

The practice of recent American presidents, in absolving criminal defendants and suspects from the penal consequences of their offending and remitting sentences, has, I think, been viewed by many British and some American observers with a mixture of incredulity and bewilderment. During the Nixon administration, and again during that of the first Bush, serious consideration was given to the question whether the president could lawfully pardon himself. In the event, neither president adopted this course, but not (it would seem) on advice that he lacked the power to do so Consideration of this narrative prompts two questions, both easily answered. First, what is the source of the presidential power of pardon? The answer is: article 11, section 2, clause 1 of the Constitution, which provides: “. . . and he [the President] shall have Power to grant Reprieves and Pardons for Offences against the United States, except in cases of Impeachment”.

The second question is: what is the provenance of this provision? The answer is: the law of England. Authority has made this clear from the earliest days. Thus, in the first case to reach the Supreme Court on the scope of the clause, Chief Justice Marshall, for a unanimous court, said: “As this power had 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.”

Thus the English provenance of the presidential pardoning power is clear. There is indeed only one express departure from the English model: whereas the Act of Settlement 1701 precluded the grant of a pardon before impeachment but permitted such a grant afterwards, the US Constitution precluded the grant of a pardon in any case of impeachment.

Recognition of an extra-judicial power to pardon or commute sentences has been a feature of every, or almost every, society since ancient times. It may indeed be said that the more primitive and unsophisticated a society’s criminal law and practice, the greater the need for an extra-judicial power to alleviate the injustices that will inevitably arise. This is amply demonstrated in our own early history. Killing was a capital felony unless in execution of a lawful sentence of a court or in the arrest of an outlaw or manifest thief or (a statutory addition) involved the killing of a trespasser by a forester or parker in the course of attempting to make an arrest. It was not in these early days a ground of defence that the killing was the result of misadventure or accident, or that the killing was in self-defence, or that the killer was of unsound mind at the time of the killing or that the killer was a child. The examples quoted in the books of pardons granted to child killers before formal recognition of an age of criminal responsibility are particularly telling.

It would be misleading to suggest that all pardons and commutations in former times were calculated to further the interests of justice. They were regularly sold, were obtainable by private solicitation and pressure, and in times of emergency were used to man the armed services, particularly the navy. In earlier days, pardons were also granted by authorities other than the Crown, a practice ended by statute in 1535 when Henry VIII obtained sole and exclusive authority “to pardon or remit any treasons, murders, manslaughters or any kinds of felonies.”

By the time of the American Revolution, there were four features of the royal prerogative of pardon which deserve mention. First, the reigning monarch, George III, exercised the power personally and conscientiously. Secondly, while the royal power of pardon was very wide, it was not unlimited. As already mentioned, a pardon could not be pleaded in bar of impeachment. The Habeas Corpus Amendment Act 1679 had earlier imposed a further restriction: when Parliament in that Act prohibited the sending of prisoners to places where the writ of habeas corpus did not run - a provision which made sure there could henceforth be no British Guantanamo - it also provided that no pardon could be relied on to defeat a charge under the Act. It was further accepted that a pardon could not be granted to defeat the private right of a third party. Thirdly, it was accepted that a commutation of sentence could be offered subject to a condition which the defendant was free to accept or not. The most usual condition was that the defendant be transported overseas and not executed, a condition to which most defendants, unsurprisingly, consented. This was a practice adopted before transportation was recognised by statute as an available sentence in 1717. Fourthly, it was accepted that even a full pardon did not do more than free a guilty person from the legal consequences of his illegal act. It did not give rise to a fiction that the person had committed no offence.

Consistently with the authority I have already cited, the Americans after independence interpreted article 11, section 2, of the Constitution very much in accord with English principles. It was held that a pardon exempted from punishment but did not expunge guilt, and that acceptance of a pardon carried with it an imputation of guilt. It was established that the president could commute a sentence of death on condition that the defendant served a sentence of life imprisonment. But perhaps most significant for present purposes is the emphasis laid on the breadth of the power and on the unfettered nature of the president’s discretion. It was described in 1871 as a power granted “without limit”. Reflecting a 1974 Supreme Court authority, a learned commentator has opined that “the President is free to exercise the pardoning power for good reason, bad reason or no reason at all.”

In light of changes made in law of England and Wales over the last 200 years [including the ability since 1907 to appeal against conviction or sentence, the establishment in 1995 of the CCRC, the introduction of a system of parole, the establishment of the CPS, authoritative recognition that the sentencing of convicted defendants is a matter for decision by independent judicial bodies and not the executive, broad acceptance of the principle that public decision makers should give reasons for their decisions and the susceptibility of applications for clemency and almost all prerogative powers, including mercy, to judicial review] I am prompted to ask what need there now is in this country for exercise of the prerogative power of pardon or mercy.

As will be apparent, I see very little scope for the royal prerogative of mercy in Britain today. Even the early release of prisoners to relieve problems of prison overcrowding is governed by statute, as it should be. The contrast between our law and that of the United States, as they now respectively stand, appears to be stark.

The contrast prompts three comparative reflections, with which I close. First, the American approach to the presidential pardon power, as expounded even in the most recent cases, highlights the tenacity with which the courts have adhered to an originalist view of the Constitution. There is no trace in this context of the “living instrument”, “living tree” approach to constitutional interpretation, allowing for organic development over time.

Secondly, the comparison highlights the literalness with which American lawyers tend to interpret their Constitution. The view that the president can lawfully exercise the power to pardon himself depends on the absence, in the text, of anything to suggest that he may not. If Tony Blair had procured an exercise of the royal prerogative to pardon him for selling honours, the suggestion that this was a lawful exercise of power would be laughed out of court.

Thirdly, and perhaps anomalously, the British law on this subject would seem to be much closer than the American to the ideals which inspired the American Revolution. The colonists then rejected what they saw as the overweening, unaccountable, all but absolute, power of the English king, replacing it with a republican democracy governed by law. Yet whereas here the royal prerogative of pardon has virtually withered away, the presidential power survives apparently intact.

This, abridged, Fourth Dame Anne Ebsworth Memorial Lecture was delivered by Lord Bingham on 9 February 2009. Dame Ann Ebsworth (1937-2002) was the sixth female High Court judge to be appointed and the first to be assigned to the QBD. She left a lasting impression on the legal world and the SEC benefited enormously from her involvement over many years.