Evolution and discussion of the Presidential power of pardon in the United States, 1787-88
This Note collects comments and opinions from 1787-8 on the proposal to give the President of the United States (a newly invented office) the authority to grant reprieves and pardons.
Most generally informed observers of American affairs, especially those living overseas, were probably unaware of the existence of this provision in the Constitution until Gerald Ford pardoned his predecessor in office, Richard Nixon. In recent decades, the power of pardon has been used in cases that were not, and could not have been, foreseen at the time of the Philadelphia Convention.
Since I am neither a citizen nor a resident of the United States, I offer no opinions upon the significance of recent controversies on the use of the Presidential pardoning power. As a historian, my concern is simply to explore how the subject was discussed at the time that it first arose. In doing so, I can offer one general comment on the material: there was relatively little debate about the power of pardon. It seems that once it was determined that a central government should be headed by a single-person executive, it more or less followed that some such function should go with the job. Hence those opponents of the Constitution who did criticise the pardoning power were usually brief in their comments and cited it simply in support of their more general rejection of the proposed Presidency.
It will be apparent that I have sought material primarily from a relatively narrow range of classic sources, and concentrated on the 'big players', the Constitution-makers at Philadelphia and the principal opinion-formers in the State ratification campaigns.[1] Other evidence no doubt exists in newspapers and in local, State-level, debate, although there is perhaps a law of diminishing returns in the search for such material.[2] To emphasise the importance of the contemporary sources I give my own commentary in italics. Shorter quotations from contemporary debate interpolated in the text are indicated by inverted commas as well as the typeface. I have not used inverted commas for longer extracts which follow introductory contextual comment.[3]
The Constitution of the United States. It is appropriate to begin with the text of the Constitution itself, even though the document belongs chronologically to the midpoint in the story, after the discussions at Philadelphia and before the public debate on its ratification. Article 2, section 2 states:
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 Offenses against the United States, except in Cases of Impeachment.
I offer four comments here. First, this section lists miscellaneous powers of the President (or, at least, refers to functions that are not necessarily related). The pardoning power follows the right of the President to demand written reports from Federal officers, which might have been assumed to be inherent in the office. Opponents of ratification linked the President's role as commander-in-chief with his power to issue pardons to paint a threatening portrait of a potential tyranny. It is possible that the Founding Fathers foresaw this and inserted the innocuous 'written report' provision between the two in order to discourage such association. This can only be a suggestion, but there is much that we do not know about the thinking of the men who crafted the Constitution, hence speculation seems in order.
Second, the section refers to "Reprieves and Pardons". In contemporary England, it was standard practice at Assizes for considerable numbers of prisoners to be sentenced to death, most of whom had their sentences promptly commuted to transportation. This was a routine and large-scale operation, of which George III himself was largely ignorant and rarely consulted.[4] Discussion at Philadelphia and debates in the ratification process concentrated almost entirely upon the power of pardon, the right of the President to expunge the offence altogether, and most of the hypothetical cases outlined related to treason. Yet Article 1, Section 8 envisaged that the federal government would have extensive control over matters such as commerce, coinage and taxation, as well as the discipline and control of the armed forces. Congress was empowered "[t]o make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers". Therefore, it should not have been difficult to foresee the emergence of a considerable body of federal law, backed by penal sanctions – as specified in the reference to "the Punishment of counterfeiting the Securities and current Coin of the United States". It was argued that a statesmanlike President might spare misguided rebels or controversial double agents from the penalties of treason, but it seems that nobody worried that some future incumbent might be motivated by less elevated motives to shield fraudsters. Although it has been the pardoning power that has been the focus of twenty-first century controversy, it is also well established that the inclusion of "reprieves" in Article 2, section 2 confers the power of commutation. This aspect of the pardoning power enables Presidents to reduce sentences without expunging them altogether, a provision used by President Trump in October 2025 to release a former Congressman ('former' because expelled by the House of Representatives) who had been imprisoned for fraud. Nonetheless, discussion of the pardoning power in 1787-8 – such as it was – seems to have concentrated on the overturning of convictions and ignored the element of reprieve and its associated implications.
Third, we should note that the President was only granted authority to deal with cases involving "Offenses against the United States". As was pointed out at the time, most State constitutions included provisions for the pardon of offenders, and these precedents made it difficult to deny similar (indeed, greater) flexibility at federal level.[5] However, no attempt was made – and, no doubt, none would have been accepted – to allow the President pardon to override prosecutions against State laws. This point would have some bearing against charges made against Donald Trump after the 2021 Presidential election, had they been pressed to formal prosecution. It should also be noted that there is no restriction, as in some State Constitutions, to pardon after conviction. At the time, commentators cited the hypothetical example of a double-agent, who had been working for the United States while ostensibly committing treason to win the confidence of an enemy power. It was argued that it was desirable that such a case should not come to court because a trial would expose the workings of the secret service. But the absence of any limitation (other than the provision relating to impeachment, discussed below, which would prove relatively ineffective) on the pardoning power in Article 2, section 2, would open the way to the issue of Get-Out-of-Jail free cards to presidential allies.[6]
Fourth, we should note the final five words of Article 2, section 2: "except in Cases of Impeachment". In England (Britain after the Union with Scotland in 1707), impeachment was the prosecution of alleged political offenders by the House of Commons with the intention of securing conviction by the House of Lords. In 1701, Parliament had passed the Act of Succession to confer the Crown upon the Electress Sophia of Hanover and her Protestant descendants. Importing a monarch from abroad carried some risk that the newcomer might not grasp the rule of the constitutional game. Almost as an afterthought, the last clause of the Act of Settlement provided that "no Pardon under the Great Seal of England be pleadable to an Impeachment by the Commons in Parliament". As a lawyer, Hamilton (and there were many of them at Philadelphia) would have had access to the British Statute Book, and we may be reasonably sure that the tailpiece to Article 2, section 2 owes its ultimate origin to that semi-postscript of 1701. However, the fact that a procedure was laid down by law did not necessarily mean that it had much practical application. Versions of the impeachment process had been used as show trials to add preliminary melodrama to the execution of dissident peers who supported the Jacobite rebellions of 1715 and 1745-6, but no purely political purge had been attempted since 1717. Forty years later, times were surely changing. As one of the greatest of modern historians of eighteenth-century England remarked, impeachment was "too cumbersome, archaic and inefficient a procedure to survive".[7] In any case, the evolution of parliamentary control provided a simpler means to oust unpopular ministers.
Consequently, we might have expected the delegates at Philadelphia to have dismissed the ritual as an antiquarian charade. Yet, in one of the great coincidences of history, at just the moment that the Convention assembled, the moribund procedure of impeachment seemed to be bursting into life after decades of inanition. Warren Hastings, former Governor of British India, had recently returned to England, with an indecently large fortune and a string of enemies. His critics determined that his wickednesses were so enormous that he merited impeachment and, by February 1787, it was clear that they had enough parliamentary support to launch a prosecution. On 3 April, the House of Commons formally voted to begin proceedings and, early in May, charges were preferred at the bar of the House of Lords. A review of the American press lies beyond the scope of this Note, but we may be reasonably sure that – even allowing for the transatlantic time-lag – the participants at Philadelphia would have regarded the process of impeachment as alive and well in Britain. It is likely that the news was viewed with greater interest and enthusiasm because the chief prosecutor was Edmund Burke, the Irish orator who had fought a lonely parliamentary battle in the defence of the American colonies a decade earlier. In the event, the first session of the trial opened on 13 February 1788, full of predictable sound and fury, and lasted for 35 sitting days. The vital ratification conventions in New York and Virginia would have been aware of this background when they fell into line in June and July 1788.[8] Of course, this is not to imply that the creation of any aspect of the United States Constitution was shaped by derivative reaction to events in Britain: indeed, the mechanism for impeachment was largely borrowed from the post-Independence (and, therefore, of course, recent) Constitutions of Virginia and Massachusetts.[9] But the revival of impeachment in Britain does help to explain why so many contemporaries regarded impeachment as a secure protection against executive tyranny in the United States, including the misuse of the pardoning power.
However, while we may assume that the delegates at Philadelphia would have been under the impression that impeachment was a live institution across the ocean, their awareness did not mean that they proposed to imitate its potentially barbaric consequences. The last person to be convicted on impeachment in Britain, Lord Lovat in 1747, was also the last victim of the executioner's axe. In the United States, impeachment was intended to remove offending federal officials from office, not from existence. Article Two, section 4 decreed that: "The President, Vice President and all Civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors."[10] However, the Constitution limited the penalty for impeachment to removal from office and ineligibility for future employment under the United States, although subsequent and independent criminal prosecution might also ensue. Congress might determine that traitors should be deprived of their property and their civil rights for life but, unlike the struggles of dynastic elimination in bygone Europe, the sentence of deprivation could not be extended to their descendants.
Overall, we may note two points about the relationship between impeachment and pardon. The first is that contemporary opinion seems to have assumed that impeachment would be routinely used to enforce ministerial discipline. The second is that, in hedging the power of pardon in relation to impeachments, the authors of the Constitution left open a wide range of options for the potentially unscrupulous Presidential use of amnesty and oblivion.
Before Philadelphia If historians were challenged to identify one single episode during the Confederation period, the decade before the drafting of the new Constitution, that most impacted upon the delegates at Philadelphia, most would identify the uprising that threatened law and order in Massachusetts from the late summer of 1786. Under the leadership of Daniel Shays, demonstrations by desperate debtors obstructed the courts and set the State authorities at defiance. The Congress of the United States, then a weak co-ordinating body, was unable to respond to an appeal from Massachusetts for help. Men of property across the Thirteen States shuddered, and resolved to create a strong central government. Recent scholarship has played down the role of Shays and sought to portray the participants as citizen protesters rather than anarchic mobs, while the balance of disinterest and self-interest displayed at Philadelphia has been a matter of debate among historians for over a century. (The four Massachusetts delegates to the Convention had been closely involved in their local crisis, but were not particularly enthusiastic about a strong central government: Elbridge Gerry even argued that federal intervention against the Shaysites would have shed more blood.) In the context of the emergence of the pardoning power, we should observe the lecture note taken by generations of undergraduates ('1786: Shays's rebellion in Mass.; 1787 Philadelphia Convention') is not so much inaccurate in its assumption of a causal relationship as chronologically over-simplified. In fact, the protest movement, although disorderly, only began to threaten to overturn the entire political order in January 1787, and the most serious clashes took place in February (when the insurgents were scattered). As with many of its deliberations and almost all aspects of its collective, off-the-record thinking, the records of the Convention are sparse in relation to evolving opinions about the power of pardon. Nonetheless, it would be remarkable had the delegates operating in the sealed bubble of Philadelphia not been influenced by the recent and sometimes desperate attempts of the authorities in Massachusetts to restore tranquillity.
The Constitution of the Commonwealth of Massachusetts vested the power of pardon in the Governor and Council. The Council was the 28-member upper branch of the legislature, the General Court, which thus acquired a partial executive role. To provide year-round continuity, the Council generally discharged its functions through a committee. In the later stages of the aftermath of the rebellion, which coincided with the beginning of the Philadelphia Convention, the involvement of the Council slowed the official response at the time when there was a clear need for flexible clemency. Out-of-town members arrived in Boston at different stages of the session, and the rules of procedure required the formal re-reading of documentation relating to individual cases each time a newcomer took his seat.[11]It was hardly a formula for emergency policy responses.
Indeed, there was another prior obstacle to be negotiated before the pardoning power could be mobilised at all. The Massachusetts constitution specified that pardons could only be issued after conviction. In the closing months of 1786, faced with several thousand men mobilised to challenge their authority, the authorities had little prospect of successfully prosecuting insurgents, and no chance at all of putting large numbers of them through the judicial process with any speed. Thus the major issue on the political agenda as the Commonwealth confronted the prospect of revolution was not pardon but amnesty, the offer of terms to discourage and divide the insurgents before they crossed the fragile boundary into lawlessness. This could only be offered by legislation, which passed the initiative to the Massachusetts legislature. In that session, its members were, to say the least, unsympathetic to the Shaysites, with Samuel Adams, the firebrand of Stamp Act days, arguing that their leaders should be hanged. (The successor legislature would prove more sympathetic to the insurgents, an inconsistency that was discussed in the debate on the Presidential pardoning power.) In the circumstances, the General Court acted with considerable generosity when it offered, on 15 November 1786, a general amnesty, in the form of a pardon, to insurgents who took an oath of allegiance to the Commonwealth before 1 January 1787. However, legislators were not full-time politicians, and their farms, businesses and no doubt their families called them away soon afterwards for a long mid-winter break. Hence, while Massachusetts teetered on the brink of anarchy, nobody possessed the authority to wield the conciliatory weapons of amnesty and pardon. In mid-February, having reassembled after its vacation, the General Court passed a second amnesty measure, guaranteeing an unconditional pardon to rank-and-file rebels who had switched to the State militia, a useful gesture at the time when the authorities were confronting and dispersing their challengers. The February amnesty included provisions that deprived some malefactors of their civic rights for a three-year period, but in June even this mild sanction was lifted in all but a handful of cases. By now, the courts were dealing with individual rebels, producing convictions that triggered the gubernatorial power of pardon. Between May and November, the months that spanned the Philadelphia Convention, Governor Bowdoin, advised by the Council, overruled prison sentences and fines in a series of specific cases. How far Shays's Rebellion pushed the delegates into crafting a strong central government can probably never be known with any certainty. Nonetheless, it is reasonable to assume that the climax and the aftermath of the disturbances in Massachusetts raised questions about the mitigation of judicial severity. The offer of clemency was good strategy in time of crisis, while the expunging of convictions was a useful way to demonstrate strength in the hour of victory. But who was best empowered to make such offers, and should such initiatives be restricted either by fundamental law or by collective consultation?[12] (More to the point, if it was difficult speedily to convene a local legislature in the relatively small area of Massachusetts, would it be feasible to involve either branch of Congress in crisis decision-making on the larger canvas of the United States?)
If the disturbances in Massachusetts formed a central concern in 1786-7, more diffuse concerns about the need for some form of national government hovered during the middle years of the decade. Officially, the Philadelphia Convention was summoned to repair the shortcomings of the weak Articles of Confederation. The delegates quickly moved away from their mandate, but habits of thought associated with the loose structure of the existing Congress formed an intellectual default position that needed to be dynamited out of the way. In particular, speculation about a republican form of central authority centred on proposals for a plural executive. Those who dreamed of a single ruler usually fantasised about the creation of an American monarchy. Since this mirage was repudiated by the most obvious indigenous candidate for a local throne, George Washington, while speculations about the importation of a British or Prussian prince were too silly to be taken seriously, a king of the United States was not going to materialise. However, some way had to be found of entrusting broad powers to a safe single chief executive. A related problem here was essentially linguistic: in newly independent America, a President was simply one who presided, at most a moderator but more often a ceremonial focus. Nowadays, most enthusiasts for American history can perform the party trick of naming the country's leaders from Washington to Trump. Few would bother to list the annually appointed Presidents who chaired the deliberations of Congress, the forgotten figureheads of the Confederation years. Ironically, George Washington acted as President of the Philadelphia Convention in just that silent spirit, while the delegates crafted around his image an office that would be invested with great power. One of the earliest manifestos in favour of a strong centralised union, Pelatiah Webster's tract of 1783, envisaged "a council of state" comprising ministers (whose role was largely advisory), supplemented by three representatives "one from New-England, one from the middle states, and one for the southern states, one of which to be appointed president by Congress – to all of whom shall be committed the supreme executive authority of the states". He did not explore the question of pardon, although he did lament that "courts may be in the wrong as well as the people; such is the imperfect state of human nature … but we must take human nature as it is, it cannot be mended".[13] Anyone using Webster to evolve a blueprint for a strong central government might well have considered making provision for mitigating such judicial error or over-reaction. But what procedure might a federal executive follow that would ensure a thoughtful and upright system of extending mercy?
In preparation for the Philadelphia Convention, Alexander Hamilton organised his thoughts by drafting an outline scheme of government for the United States. However, in that form, it was "not submitted to the Convention and has no further value than attaches to the personal opinions of Hamilton". In 1803, Hamilton referred to it as a document that he had submitted to Madison a day or so after the Convention closed, either as some sort of souvenir of their working partnership, or because Madison seems to have been collecting source materials for a possible history of the making of the Constitution.[14]
Hamilton envisaged a bicameral national legislature, calling its branches the 'Senate' and the 'Assembly', the former to serve for life. Attracted to the theory of monarchy, he outlined the prerogatives of an executive which he sought to embody in a single person styled the 'President' but acting in an entirely new, non-consensual spirit. One of the subjects that he tackled was the pardoning power: "[The President] shall commission all Officers. He shall have power to pardon all offences except treason, for which he may grant reprieves, untill the opening of the Senate & Assembly can be had; and with their concurrence may pardon the same."[15] No doubt influenced by the recent experience of Massachusetts, Hamilton preferred to grant sweeping powers of pardon to the President, unrestricted by any need to await conviction of offenders and only dependent upon the agreement of legislators in cases of treason. Hamilton would be one of the few contributors to debate who referred to reprieves. He was evidently thinking of capital cases, and used the term to indicate stay of execution, not commutation of sentence to some lesser term of imprisonment. As his contribution to The Federalist would reveal, he continued to believe that Congress ought to have some role in the process, acknowledging the argument even when the battle was lost.
Pardon at Philadelphia, 1787. The story of the Philadelphia Convention has often been related.[16] It is possible to exaggerate the element of group-think that developed among the delegates during their four months of deliberation: after all, one quarter of them refused to sign the final document, and participation of personnel was by no means constant. Yet the centre of gravity of the majority element of collective thinking within the Convention was quickly pushed towards debating a policy agenda slewed towards central control. This seems to have meant that supplementary ideas took on an osmotic quality, permeating discussion simply because they represented natural extensions of the prevailing intellectual trend. Hence, although there is remarkably little recorded mention of the pardoning power, it may be assumed that it took root as a corollary of the developing notion of an executive President.
The landmark dates stand out. The Philadelphia Convention formally assembled on 25 May 1787, but some delegates had already arrived in town and were working behind the scenes beforehand. The Virginians, James Madison and Edmund Randolph, lobbied the Pennsylvanians to support a Large-State project, the Virginia Plan, which proposed a strong national government with a population-based bicameral legislature. This was put before the Convention on 29 June, and quickly forced discussion into centralising channels. By the time the smaller States had rallied, proposing the alternative New Jersey Plan on 15 June, their attempts to toughen the existing Articles of Confederation seemed inadequate.[17] Deadlock threatened the Convention, with the smaller States refusing to give up their equal representation in a national legislature. On 5 July, a way out was suggested. Known as the Connecticut Compromise, it envisaged a House of Representatives apportioned by population and balanced by a Senate to which every State, large or small, would send two members. Details were hammered out throughout July, including the particularly important concession that Senators were free to vote as individuals and would not constitute the State delegations that had rendered the Confederation Congress ineffective – a straitjacket that sometimes created random decisions at Philadelphia too.
That much of the story is well known. Historians are reluctant to describe any past outcome as inevitable, if only because inevitability would do them out of their explanatory job, Nonetheless, it is possible to review the Philadelphia scenario, the personalities and their priorities, and conclude that the bicameral national legislature and its balance between State sovereignties and State populations was predictable. But, on 1 June, as the delegates began to work through the detail of the Virginia Plan, something happened that shook their shibboleths and forced them to question their cherished distrust of authority. The big States wanted to establish an effective executive to work alongside the legislature in securing central control. The introduction of the Virginia Plan had been entrusted to Edmund Randolph, who carried considerable prestige as the State's Governor. Randolph had envisaged a three-person executive, echoing Peletiah Webster's proposal to treat the United States as three sections.
However, James Wilson of Pennsylvania proposed "that a national executive to consist of a single person be instituted". This breath-taking innovation was followed by "[a] considerable pause", a silence broken when Convention President George Washington, in a rare intervention, asked whether the delegates wished him to put the matter to a vote. At this point, the veteran Benjamin Franklin suggested that it would be helpful to hear opinions on the suggestion. After a range of views had been cautiously voiced, a vote on Wilson's proposal was "postponed by common consent", the delegates "seeming unprepared for any decision on it". The embarrassed discussion had used coded terminology (such as "unity in the Executive") although a shocked Randolph had dismissed the idea as "the foetus of monarchy".[18]
In reality, Wilson had articulated a proposition that most of the delegates realised made sense, provided it was possible to guard against despotism, for instance by limiting the incumbent's term of office and power to declare war or make peace treaties. The idea of a single executive – Wilson was probably responsible for the adoption of the term 'President' – was steadily incorporated into the emerging scheme: when the Committee of the Whole reported on 13 June, it proposed "[t]hat a national Executive be instituted to consist of a single person".[19] Neither the Virginia Plan nor the Committee of the Whole had given consideration to any pardoning power, but it would become clear that, whether the federal executive was a compere or a chorus line, some discretion must be given to the central power to mitigate unjustifiably harsh sentencing. As James Iredell was to point out, the power to pardon had to exist "somewhere in every government" and, in America, it was vested in the State Governors. Wilson's single executive would tend to dramatise the issue at federal level.
Yet, according to the formal record, the Convention had deliberated for three weeks before Alexander Hamilton briefly touched upon it. Marginalised within the New York delegation, where his two colleagues were suspicious of moves towards centralisation, and isolated in his theoretical enthusiasm for monarchy, Hamilton had little chance of influencing the Convention when he unleashed a five-hour presentation of his ideas on 18 June. It has been suggested that his motive in speaking was, by implication, to portray the Virginia Plan as a moderate proposal. However, if he was hoping to intimidate the smaller States into accepting a compromise, he was brandishing a scarecrow, for his scheme was politely ignored. Hamilton took the single executive idea into a new dimension. "The supreme Executive authority of the United States to be vested in a Governour to be elected to serve during good behaviour" – in other words, indefinitely. This officer was "to have the power of pardoning all offences except Treason; which he shall not pardon without the approbation of the Senate".[20] Hamilton had retreated from his pre-Convention preference for consultation with both Houses on treason cases to a more faithful imitation of the practice in Massachusetts, where the conviction of Shaysite rebels was beginning to open the way for gestures of official mercy from the Governor and the Council. (He also hoped, without any prospect of achieving his dream, for a Senate that would resemble the British House of Lords, its members appointed for life and perhaps resident in the proposed national capital year-round.) As envisaged at the Convention, the Senate would be a relatively small body (18 members if the new system went into operation among nine ratifying States, 26 if all Thirteen fell into line). With Senators to be elected indirectly and in office for six years, it was therefore possible to think of the planned federal upper house as a kind of privy council capable of contributing disinterested advice to the executive. It may be that the Connecticut Compromise in July subtly changed the attitude of some delegates to the future Senate, whose members, as champions of their individual States, would be open to local influences.
The pardoning power now disappeared into the intricate work of the aptly named Committee of Detail. An outline of the proposed document in the handwriting of Edmund Randolph survives. Dated from around 24-26 July, it was a working paper, with deletions and comments that give clues to its evolution.[21] One marginal annotation indicates that the pardoning power was now linked to impeachment: "The power of pardoning vested in the Executive [which] his pardon shall not however, be pleadable to an Impeachm[en]t."[22] A more polished document, in the handwriting of James Wilson, apparently embodies the draft Constitution produced by the Committee of Detail in early August. Of the powers of the President – the style was now firmly accepted – it stated: "He shall have power to grant reprieves and pardons; but his pardon shall not be pleadable in bar of an impeachment."[23]
This formula, in those same words, formed part of Article 10 of the Constitution submitted (unusually, given the concern for security, in a printed form) on 6 August.[24] Something had clearly happened during the subterranean thought-processes of the delegates since Hamilton's presentation on 19 June. The most extreme proponent of a powerful single-person executive had been prepared to share the responsibility of sparing traitors with the Senate. Yet, by the end of July, the Convention was crystallising a pardoning power that was limited only by the relatively mild and essentially political penalties of impeachment. What had happened?
Most studies of the Presidency quote the reflection of the South Carolina delegate, Pierce Butler, who explained that "many of the members cast their eyes towards General Washington as the first President, and shaped their ideas of the powers to be given a President, by their opinions of his Virtue".[25] It is sometime assumed that Washington's role at Philadelphia was entirely Olympian: he simply banged the gavel and rehearsed for his role on Mount Rushmore. Yet Washington did take part in Convention votes as an ordinary member, and it is implausible that he had no personal contact with at least some of other delegates – his fellow Virginians, for instance – outside the formal sessions. Even if he did not intrigue for the new executive office, he could hardly have been ignorant of the speculations and preferences swirling around the Convention. Thus we may fairly assume that, in determining the detailed powers and responsibility for the office of President, many of the delegates had George Washington in mind. Moreover, to them, he was, above all, General Washington. This was no mere honorific title: he had held office as Commander-in-Chief of the Continental Army, a position of great honour but one that carried with it awesome responsibilities of life and death. In 1780, a young British officer, Major John André, had been arrested as a spy and sentenced to death. Although André was a dashing figure, admired for instance by Hamilton, Washington had refused him clemency and had even ignored his plea for a soldier's death by firing squad, imposing instead a squalid end on the gallows. From a modern standpoint, the execution of Major André is a grim episode in the record of George Washington. However, his fellow delegates at Philadelphia were more likely to have regarded the episode as evidence that he could cope with the responsibility of the Presidential pardoning power.
Thus it was that, by early August, the pardoning power had emerged from the Committee of Detail limited only by the untried political factor of impeachment. Even in that contingency, the outline wording of the draft Constitution of 6 August seems to have left open other possible scenarios. For instance, although Presidents could not prevent the dismissal of officers of the United States following successful impeachment, it was not clear whether they could interpose the power of reprieve to shield them from the consequence of subsequent prosecution? Some delegates evidently felt that the implications of the power of pardon had not yet been fully considered.
The Convention now settled to reviewing the draft provisions in detail. On 27 August, it reached the proposed powers of the President in Article 10, as quoted above: "He shall have power to grant reprieves and pardons; but his pardon shall not be pleadable in bar of an impeachment." Roger Sherman of Connecticut "moved to amend the 'power to grant reprieves & pardon' so as to read 'to grant reprieves until the ensuing session of the Senate, and pardons with consent of the Senate'." Hamilton had argued for this shared responsibility two months earlier. Now only Connecticut supported it, New Jersey did not vote and the remaining eight States rejected the restriction. A second amendment was carried without a formal vote since it simply streamlined the existing clause: the words "except in cases of impeachment" were inserted after "pardon". The third suggested alteration is more mysterious, and it is to be regretted that nothing is revealed in Madison's notes, our only detailed source for discussions in the Convention. The proposal was to add the words "but his pardon shall not be pleadable in bar", apparently after the allusion to impeachment. If this is the correct interpretation, then it was presumably an attempt to close a possible loophole, since the outline wording of the draft Constitution of 6 August seems to have left open the possibility that a President might issue a pardon to disgraced political allies who fell foul of the specific provisions of the Law following their deprivation of office. The restriction came close to gaining acceptance: four States (New Hampshire, Maryland and the two Carolinas) voted in its favour, while New Jersey again registered no opinion.[26] Two days later (Sunday having intervened), Luther Martin of Maryland proposed the addition of the words "after conviction" to follow "reprieves and pardons", thereby preventing Presidents from short-circuiting prosecutions and possibly issuing open-ended amnesty coupons. This time we do have a brief note by Madison that shows James Wilson squashing the idea. "Mr Wilson objected that pardon before conviction might be necessary in order to obtain the testimony of accomplices. He stated the case of forgeries in which this might particularly happen." This was a rare example of pardon being discussed in relation to an offence other than treason. Luther Martin, who would strongly oppose the Constitution, may simply have been putting down a marker to support his subsequent criticism. Perhaps other delegates recalled that the 'after conviction' qualification had obstructed Governor Bowdoin in offering amnesty to the Massachusetts insurgents. Luther Martin's proposal evidently gained no support, and he withdrew it without seeking a vote.[27]
Although he had launched the Virginia Plan that had pushed the Convention towards designing a completely new system of government, Edmund Randolph had become increasingly unhappy with aspects of the evolving scheme. On 10 September, he took the opportunity to outline his objections, specifying no fewer than twelve aspects of the scheme which seemed either misguided or defective: in other words, some proposals were objectionable while other hazards had been ignored. Among the former, he mentioned "the unqualified power of the President to pardon treasons". This was a dangerous moment for the Convention. Both in personal stature and through the office that he held, the Governor of Virginia was a political heavyweight. If his home State refused to endorse the new system of government, its national structure would become a sham. Randolph did not like the position in which he found himself, and he appealed to his fellow delegates to understand his plight. "With these difficulties in his mind, what course he asked was he to pursue? Was he to promote the establishment of a plan which he verily believed would end in Tyranny? He was unwilling he said to impede the wishes and Judgment of the Convention – but he must keep himself free, in case he should be honored with a Seat in the Convention of his State, to act according to the dictates of his judgment." His tentative solution can hardly have aroused enthusiasm from a collection of notables who had been locked in abstruse debate for three and a half hot summer months. The draft Constitution, he suggested, should be remitted to State ratifying conventions with the power to propose amendments, "the process to close with another general Convention with full power to adopt or reject the alterations proposed by the State Conventions, and to establish finally the Government." The chances of such a process producing unanimity and harmony were slight. No doubt wearily and warily, delegates agreed to see if they could find ways of dealing with Randolph's concerns. He apparently agreed, specifying "a motion relating to Pardons in cases of Treason" as a priority for consideration.[28]
The debate on Randolph's objections, which took place five days later, on 15 September 1787, is the longest documented discussion on the pardoning power from the Convention – and, even here, Madison's notes give only an outline of the opinions expressed. It is clear that Randolph's fellow Virginians were divided in their attitude to the question, while his concerns were not shared by two of the most cogent of the Pennsylvanians. Randolph proposed to "except cases of treason" from the President's control. "The prerogative of pardon in these cases was too great a trust. The President may himself be guilty. The Traytors may be his own instruments." But Gouverneur Morris "had rather there should be no pardon for treason, than let the power devolve on the Legislature." The creator and defender of the idea of a single executive, James Wilson agreed. "Pardon is necessary for cases of treason, and is best placed in the hands of the Executive. If he be himself a party to the guilt he can be impeached and prosecuted." Rufus King of Massachusetts combined a theoretical objection with some acid comments on the inconsistency of the legislature of his home State in its latest responses to the aftermath of Shays's Rebellion. King "thought it would be inconsistent with the Constitutional separation of the Executive & Legislative powers to let the prerogative be exercised by the latter. A Legislative body is utterly unfit for the purpose. They are governed too much by the passions of the moment. In Massachusetts, one assembly would have hung all the insurgents in that State: the next was equally disposed to pardon them all. He suggested the expedient of requiring the concurrence of the Senate in Acts of Pardon." Madison's summary evidently does not do justice to the subtlety of King's remarks. The final sentence suggests that he objected to the sharing the power of pardon with a lower house, chosen by the people on a short-term tenure, but that he was open to the involvement of the indirectly elected Senate. Madison perhaps truncated his account of King's comments because he was preparing to make his own contribution. "Mr Madison admitted the force of objections to the Legislature, but the pardon of treasons was so peculiarly improper for the President that he should acquiesce in the transfer of it to the former, rather than leave it altogether in the hands of the latter. He would prefer to either an association of the Senate as a Council of advice, with the President."[29] But the Virginian dissidents took a less benign view of the planned upper house. "Mr Randolph could not admit the Senate into a share of the Power. The great danger to liberty lay in a combination between the President & that body." George Mason, who had seconded the motion, was equally emphatic. "The Senate has already too much power. There can be no danger of too much lenity in legislative pardons, as the Senate must con concur [sic], & the President moreover can require 2/3 of both Houses." We can only assume either that Mason's remarks were incorrectly summarised, or that he indulged in some speculation about ad hoc arrangements that a President might make to involve Congress in the exercise of mercy. Only the Georgia delegation backed the Virginians in the vote. The Connecticut delegates were split and consequently abstained. The remaining eight States rejected Randolph's motion.[30] Two days later, as the Convention closed, he declined to sign the final document.
Ratification In considering the process of ratifying the Constitution, there are limitations in the approach of this Note, since by highlighting allusions to the pardoning power, a single element – and not a prominent one – it cannot capture its impact in a series of wide-ranging debates. As has been often narrated, the federalist campaign to capture State endorsements involved organisational skill and the discreetly ruthless exercise of pressure upon the recalcitrant. In several instances, the ambitions of influential public figures were exploited to secure compliance: Edmund Randolph's motives were particularly complex. Behind closed doors at Philadelphia, delegates had expounded their philosophies and given voice to their fears. In public debate, there was a greater tendency to advance arguments designed to mobilise wider fears and prejudices. The State ratifying conventions gave rise to a considerable amount of oratory and pamphleteering, most notably the political science classic of The Federalist, which was a spin-off of the tight contest in New York. Even so, the pardoning power does not seem to have generated much discussion until close to the end of the struggle. This belated development was associated with a well-known complication in the ratification saga. To exorcise the unanimity principle that had rendered the Confederation impotent, and to circumvent the expected opposition of Rhode Island, the Convention had decreed that the Constitution would go into operation once it had the support of nine States. The federalists then moved quickly where they were strongest, to create a momentum, particularly by securing the more malleable of the smaller States.[31] By June 1788, the necessary nine ratifications had been achieved, but an unforeseen complication threatened the successful launching of the new system of government: two of the largest States by population, Virginia and New York, were still outside, and both seemed to be leaning towards rejection. In addition, North Carolina was reluctant, meaning that the new nine-member United States faced geographical dismemberment.[32] As the contest for ratification became more intense, so the process acquired (de facto) something of Edmund Randolph's hoped-for cumulative redrafting. Several States specified changes that they would like to see, although their proposals constituted demands for amendment and not conditions for ratification. Some of these proposals were grouped together to form the Bill of Rights passed in 1791. New York pressed for changes to the Presidential pardoning power. It appears that no other State formally raised the issue, and the subject seems to have disappeared from sight.
In a debate in the Maryland Assembly in November 1787, Luther Martin merely touched upon the pardoning power as one of his miscellaneous objections to the Constitution. "As to the Vice President, the larger States have a manifest influence and will always have him of their choice. The power given to these persons over the Army, and Navy, is in truth formidable, but the power of Pardon is still more dangerous, as in all acts of Treason, the very offence on which the prosecution would possibly arise, would most likely be in favour of the Presidents [sic] own power."[33] Five months later, Maryland ratified with little opposition. Pennsylvania federalists had been quick off the mark in organising their convention. On 11 December 1787, Thomas McKean confronted criticisms about the pardoning power. The State's Chief Justice, who had also served in the Continental Congress – curiously, as the representative of nearby Delaware – McKean was a proponent of a strong judiciary. Hence his bald dismissal of the concerns of doubters carried weight. He noted the objection that the President would have "the sole power of pardoning offences against the United States, and may therefore pardon traitors, for treasons committed in consequence of his own ambitious and wicked projects, or those of the Senate." But McKean also noted that critics also objected that "the whole of the executive power is not lodged in the President alone". Since the declaration of war and the conclusion of treaties required the consent of the Senate, there was no "one responsible person" at the apex of the system.
"Observe the contradiction," McKean pointed out, "in these two objections. One moment the system is blamed for not leaving all executive authority to the President alone, the next it is censured for giving him the sole power to pardon traitors." He made light of the inference that the President "may pardon traitors, for treason committed in consequence of his own ambitious and wicked projects." Precisely the same could be said of the executive council of Pennsylvania. "But the President of the United States may be impeached before the Senate, and punished for his crimes."[34] Although outvoted two-to-one when the Pennsylvania voted to ratify in December 1787, the minority placed their dissent in record, listing concerns that the President would be too powerful. One of their objections predicted: "having the power of pardoning without the concurrence of a council, he may screen from punishment the most treasonable attempts that may be made on the liberties of the people, when instigated by his coadjutors in the senate."[35]
As the Connecticut convention prepared for its midwinter meeting, a local newspaper published two detailed discussions of the proposed Constitution by one of the most active participants at Philadelphia, Roger Sherman, writing under the pen-name of 'A Citizen of New Haven'. On 4 December he referred to the objection that "the president ought not to have power to grant pardons in cases of high treason, but the congress." It was a criticism that hardly merited consideration. "It does not appear that any great mischief can arise from the exercise of this power by the president (though perhaps it might as well have been lodged in congress). The president cannot pardon; in case of impeachment, so that such offenders may be excluded from office notwithstanding his pardon." On 25 December – Christmas was no barrier to newspaper publication – he touched upon the subject again. " The power of the President to grant pardons extends only to offences committed against the United States, which can't be productive of much mischief, especially as those on Impeachment are excepted, which will exclude offenders from office."[36] Sherman's assumptions are of interest. He regarded the subject as so marginal that it simply did not matter whether the pardoning power was vested in the President or in Congress. In any case, the impeachment process would provide a safeguard against abuse. The fact that the provision applied "only to offences committed against the United States" suggested that federal law would apply only in restricted areas and would hardly affect the ordinary citizen at all. The following month, the Connecticut State convention voted to accept the Constitution by three to one.
In Virginia, criticism of the Presidential pardoning power was more widespread. True, the influential anti-federalist Letters from the Federal Farmer devoted just one sentence to the subject, and that in a tone of regret rather than censure. "I wish the power to reprieve and pardon was more cautiously lodged, and under some limitations." Moreover, the series had begun publication in October 1787, but this comment only appeared in the eighteenth and final dissection of the scheme the following January.[37] However, an equally terse comment from George Mason was uncompromisingly hostile. Mason had listed his objections to the Constitution in a memorandum written immediately after the conclusion of the Philadelphia Convention. This document was soon in circulation in pamphlet form, and Mason's opposition was regarded as sufficiently damaging to trigger its extensive rebuttal by James Iredell in the North Carolina debate. Mason was unambiguous in voicing his distrust. "The President of the United States has the unrestrained power of granting pardon for treason; which may be sometimes exercised to screen from punishment those whom he had secretly instigated to commit the crime, and thereby prevent a discovery of his own guilt."[38] At the State convention in June 1788, he underlined his objection: "the President ought not to have the power of pardoning, because he may frequently pardon crimes which were advised by himself. It may happen, at some future day, that he will establish a monarchy, and destroy the republic. If he has the power of granting pardons before indictment, or conviction, may he not stop inquiry and prevent detection? The case of treason ought, at least, to be excepted. This is a weighty objection with me."[39] In a direct rebuttal, Madison adopted Rufus King's point from the Philadelphia discussions, pointing to the inconsistency of response to the Shaysite insurgents by two successive Massachusetts Assemblies. "Mr Madison, adverting to Mr Mason's objection to the President's power of pardoning, said it would be extremely improper to vest it in the House of Representatives, and not much less so to place it in the Senate, because numerous bodies were actuated more or less by passion, and might, in the moment of vengeance, forget humanity. It was an established practice in Massachusetts for the legislature to determine in such cases. It was found, says he, that two different sessions, before each of which the question came with respect to pardoning; the delinquents of the rebellion, were governed precisely by different sentiments: the one would execute with universal vengeance, and the other would extend general mercy."[40] Madison had retreated from his earlier preference for the involvement of the Senate as a council of advice, no doubt appreciating that its members would be motivated by State rivalries.
However, Virginians were by no means united in criticising the pardoning power. The lawyer and Assemblyman George Nicholas, a second-rank figure, praised the Constitution, arguing that in a number of respects, it would provide a better system of government than existed in Britain. One of these was "the power of impeachment. In England, very few ministers have dared to bring on themselves an accusation by the representatives of the people, by pursuing means contrary to their rights and liberties. Few ministers will ever run the risk of being impeached, when they know the king cannot protect them by a pardon. This power must have much greater force in America, where the President himself is personally amenable for his mal-administration; the power of impeachment must be a sufficient check on the President's power of pardoning before conviction."[41] Richard Henry Lee also had no doubts, despite his overall distaste for the Constitution. "He thought the power of pardoning, as delineated in the Constitution, could be nowhere so well placed as in the President. It was so in the government of New York, and had been found safe and convenient."[42]
Edmund Randolph had expressed his criticisms of the proposed Constitution at considerable length in a message to the lower chamber of the Virginia legislature, the House of Delegates, in mid-October. He still hankered after a second national Convention, although he appreciated the difficulties in achieving consensus and he was aware of the risks of breaking up the United States into jarring parts. He listed ten subjects on which he hoped that Virginia might lead an inter-State coalition for improvement but, unfortunately, he did not elaborate his reasons for prioritising these particular issues. Indeed, he asserted that "to explain every objection at full length would be an immense labour, I shall content myself with enumerating certain heads, in which the constitution is most repugnant to my wishes." Three of his the ten demands were for limitations on the power of the President, and these included "taking from him the power of pardoning for treason at least before conviction."[43]
By chairing the subsequent Convention, Edmund Randolph was able to avoid committing himself any further on specific questions. His role also enabled him to steer the delegates into a grudging endorsement of a Constitution that they insisted was flawed. In doing so, they announced that after "a solemn appeal to the Searcher of hearts for the purity of our intentions", they had high-mindedly resolved to avoid bringing "the Union into danger by a delay with a hope of obtaining Amendments previous to the Ratification". However, they insisted that the "imperfections" of the document required further examination, and they bluntly warned that "the powers granted under the Constitution being derived from the People of the United States may be resumed by them whensoever the same shall be perverted to their injury or oppression".[44] The Virginia ratification document listed no fewer than forty blemishes and shortcomings in the design for government which the convention wished to see changed, half of them through the addition of a Bill of Rights, the remainder by constitutional amendments.[45] Perhaps it was a reflection of the division of opinion among the delegates that the pardoning power was not mentioned in this detailed critique, despite its headline position in Randolph's own shopping list. But it is also noteworthy that the 2,300-word wish list made only one passing mention of the Presidency.[46] An unkind verdict? A seasoned, not unduly cynical, political observer might suggest that Randolph was positioning himself for federal office, and did not wish to risk offending the President who would make the appointments. He would become the first Attorney-General of the United States.
James Iredell's defence of the Presidential pardoning power againt George Mason's attack triggered one of the longest and most cogent discussions of the subject during the ratification debates. It has been suggested that James Iredell of North Carolina did not attend the Philadelphia Convention because he could not afford the loss of income. He was certainly a serious legal and political theorist, whose standing would be recognised by his appointment in 1790 as one of the first Associate Justices of the United States Supreme Court. As one of the prominent supporters of the new Constitution in his own State, Iredell realised that Mason's objections would carry weight and he sought to rebut them in a closely argued pamphlet.[47] The power of pardon was dealt with in Objection Six.
Iredell asserted that the pardoning power was a necessary part of any system of government as a backstop against judicial errors. Citing the precedents of State Governors and of the Stadtholder, the hereditary President of the Dutch Republic, he insisted that it should not be subject to limitations. Indeed, he scoffed at theorists who imagined that they could create machinery that would provide for every eventuality.[48] Invoking the hated name of Benedict Arnold, who had defected from the American cause to become a British general during the War for Independence, he urged that it was unlikely that any President would prove so evil. This device cleverly implied that those who expressed doubts about the competence of the chief executive were, in effect, defaming some future President as a traitor of the deepest dye. He then outlined, in some evocative detail, the hypothetical case of a double agent, secretly commissioned by the President to undertake the hazardous task of insinuating himself into the confidence of the enemy to discover their secrets. His apparent treachery would provoke popular fury, for only the President would know of the courage with which he had risked his life. Of course, the nation's leader must have untrammelled power to spare him from the people's anger. Mason's suggestion that the President might himself be a traitor was highly implausible.
The section closed with a confusing digression about the fate of Admiral Byng, which Iredell might well have omitted. In 1708, Britain had occupied Minorca (Menorca in the variant eighteenth-century spelling) in the Balearic Islands as a Mediterranean naval base. The island was lost in 1756 after Admiral John Byng failed to break through a French blockade. Although Byng had been given inadequate forces, it suited the government to blame him for the disaster, and the unlucky admiral was executed by firing squad. Iredell argued that, had Byng been pardoned, he would have been able to turn the tables on his accusers as an aggrieved complainant. Hence Presidents would be reluctant to show mercy to guilty accomplices, in case the recipients of mercy turned on their principal co-conspirator. Since George II had refused to consider sparing his chosen scapegoat, it is hard to see the force of Iredell's point.
James Iredell was undoubtedly one of the most subtle political theorists in the America of the seventeen-eighties. However, we may note some inconsistencies in his method of argument. For instance, he scoffed at constitutional architects who believed they could design machinery of mercy that would cover every possible crisis or contingency, while outlining at some length his own favoured scenarios of the hated double agent or (subsequently) the misguided citizen deluded into rebellion. When he believed –wrongly – that every State Governor was entrusted with the power of pardon, that precedent was held to be overwhelmingly persuasive. On discovering that he was misinformed, and that some States the legislature was involved, he dismissed the exceptions as a temporary aberration.
A lengthy extract from Iredell's Answers to Mr Mason's Objections to the New Constitution follows. It merits inclusion in this Note as one of the most extensive recorded comments on the pardoning power made during the ratification process. However, readers who have a limited tolerance for the wordiness of eighteenth-century pamphleteering may prefer to go direct to the second extract, from Iredell's speech to the North Carolina ratifying convention.
Nobody can contend upon any rational principles, that a power of pardoning should not exist somewhere in every government because it will often happen in every country that men are obnoxious to a lawful conviction, who yet are entitled, from some favorable circumstances in their case, to a merciful interposition in their favor. The advocates of monarchy have accordingly boasted of this, as one of the advantages of that form of government, in preference to a republican; nevertheless this authority is vested in the Stadtholder in Holland, and I believe is vested in every Executive power in America.
It seems to have been wisely the aim of the late Convention, in forming a general government for America, to combine the acknowledged advantages of the British constitution with proper republican checks to guard as much as possible against abuses, and it would have been very strange if they had omitted this, which has the sanction of such great antiquity in that country, and if I am not mistaken, a universal adoption in America. [Apparently at a late stage in the production of his pamphlet, Iredell discovered that he was misinformed about pardoning procedures in the various States: "in the constitutions of some of the States there are much stronger restrictions on the Executive authority in this particular than I was aware of." He argued that these limitations on the power of Governors to issue pardons reflected an understandable suspicion of arbitrary power at the time when their post-Independence constitutions were adopted and that, accordingly, they did not affect his argument. This was an ingeniously flexible attitude to the argument from precedent. Iredell explained away the problem in a lengthy footnote, which I too have relegated to the endnotes.[49]] Those gentlemen who object to other parts of the constitution as introducing innovations, contrary to long experience, with a very ill grace attempt to reject an experience so unexceptionable as this, to introduce an innovation (perhaps the first ever suggested) of their own. When a power is acknowledged to be necessary, it is a very dangerous thing to prescribe limits to it, for men must have a greater confidence in their own wisdom than I think any men are entitled to, who imagine they can form such exact ideas of all possible contingencies as to be sure that the restriction they propose will not do more harm than good.
The probability of the President of the United States committing an act of treason against his country is very slight; he is so well guarded by the other powers of government, and the natural strength of the people at large must be so weighty, that in my opinion it is the most chimerical apprehension that can be entertained. Such a thing is however possible, and accordingly he is not exempt from a trial, if he should be guilty or supposed guilty, of that or any other offence. I entirely lay out of the consideration of the probability of a man honored in such a manner by his country, risking like General Arnold, the damnation of his fame to all future ages, though it is a circumstance of some weight in considering whether for the sake of such a remote and improbable danger as this, it would be prudent to abridge this power of pardoning in a manner altogether unexampled, and which might produce mischiefs the full extent of which it is not perhaps easy at present to foresee. In estimating the value of any power it is possible to bestow we have to choose between inconveniences of some sort or other, since no institution of man can be entirely free from all.
Let us now therefore consider some of the actual inconveniences which would attend an abridgment of the power of the President in this respect. One of the great advantages attending a single Executive power is the degree of secrecy and dispatch with which on critical occasions such a power can act. In war this advantage will often counterbalance the want of many others. Now suppose, in the very midst of a war of extreme consequence to our safety or prosperity, the President could prevail on a gentleman of abilities to go into the enemy's country, to serve in the useful, but dishonorable character of a spy. Such are certainly maintained by all vigilant governments, and in proportion to the ignominy of the character, and the danger sustained in the enemy's country, ought to be his protection and security in his own. This man renders very useful services; perhaps by timely information, prevents the destruction of his country. Nobody knows of these secret services but the President himself; his adherence however to the enemy is notorious: he is afterwards intercepted in endeavoring to return to his own country, and having been perhaps a man of distinction before, he is proportionably obnoxious to his country at large for his supposed treason. Would it not be monstrous that the President should not have it in his power to pardon this man? or that it should depend upon mere solicitation and favor, and perhaps, though the President should state the fact as it really was, some zealous partisan, with his jealousy constantly fixed upon the President, might insinuate that in fact the President and he were secret traitors together, and thus obtain a rejection of the President's application.
It is a consideration also of some moment, that there is scarcely any accusation more apt to excite popular prejudice than the charge of treason. There is perhaps no country in the world where justice is in general more impartially administered than in England, yet let any man read some of the trials for treason in that country even since the revolution; he will see sometimes a fury influencing the judges, as well as the jury, that is extremely disgraceful. There may happen a case in our country where a man in reality innocent, but with strong plausible circumstances against him, would be so obnoxious to popular resentment, that he might be convicted upon very slight and insufficient proof. In such a case it would certainly be very proper for a cool temperate man of high authority, and who might be supposed uninfluenced by private motives, to interfere and prevent the popular current proving an innocent man's ruin.
I know men who write with a view to flatter the people, and not to give them honest information, may misrepresent this account as an invidious imputation on the usual impartiality of juries. God knows no man more highly reverences that blessed institution than I do; I consider them the natural safeguard of the personal liberties of a free people, and I believe they would much seldomer err in the administration of justice than any other tribunal whatever. But no man of experience and candor will deny the probability of such a case as I have supposed sometimes, though rarely, happening; and whenever it did happen, surely so safe a remedy as a prerogative of mercy in the Chief Magistrate of a great country ought to be at hand. There is little danger of an abuse of such a power, when we know how apt most men are in a republican government to court popularity at too great an expense, rather than do a just and beneficient action in opposition to strong prevailing prejudices among the people.
But says Mr Mason, 'The President may sometimes exercise this power to screen from punishment those whom he had secretly instigated to commit the crime, and thereby prevent a discovery of his own guilt.' This is possible, but the probability of it is surely too slight to endanger the consequences of abridging a power which seems so generally to have been deemed necessary in every well regulated government. It may also be questioned, whether supposing such a participation of guilt, the President would not expose himself to greater danger by pardoning, than by suffering the law to have its course. Was it not supposed, by a great number of intelligent men, that Admiral Byng's execution was urged on to satisfy a discontented populace, when the administration, by the weakness of the force he was entrusted with, were perhaps the real cause of the miscarriage before Minorca? Had he been acquitted, or pardoned, he could have perhaps exposed the real fault: as a prisoner under so heavy a charge his recrimination would have been discredited, as merely the effort of a man in despair to save himself from an ignominious punishment. If a President should pardon an accomplice, that accomplice then would be an unexceptionable witness. Before, he would be a witness with a rope about his own neck, struggling to get clear of it at all events. Would any men of understanding, or at least ought they to credit an accusation from a person under such circumstances?
By the time North Carolina's ratifying convention convened on 21 July 1788, ten States had accepted the Constitution: Virginia, the most recent adherent, had demanded a Bill of Rights and an array of amendments, while New York, where opinion was sharply divided, was still debating its response. One North Carolina delegate rejected the argument that "we ought to adopt because so many other states have. … We are to exercise our own judgments, and act independently."[50] In keeping with this detached lack of enthusiasm, and in the hope of adding pressure to the demand for the addition of a Bill of Rights, on 2 August 1788, the Convention voted by two-to-one neither to accept nor to reject the new system of government. As one of the most committed and best informed of the federalist minority, Iredell made frequent and cogent contributions. "He argued as if he were speaking to a jury, staying close to the point and taking care to alienate no possible ally." [51] On 28 July, in a speech to a committee of the convention, he discussed the functions of the President and addressed the question of the pardoning power. The extract from his speech is perhaps easier to read than his earlier pamphlet.[52] Iredell reiterated his hypothetical case of the brave double agent condemned for his apparent acts of treason who could only be saved from execution by the interposition of the President who had commissioned his mission. But he introduced a new argument which made a direct appeal to the recent events in Massachusetts. There was a need for a flexible process of amnesty to encourage insurgents deluded by agitators to make their peace with the authorities. However, he did not spell out the detail that the pardoning power in Massachusetts had been shared with the upper House of the legislature, and this had left a vacuum in decision-making during the crucial winter months of 1786-7 as popular discontent had boiled into violence.
Another power that he [the President] has is to grant pardons, except in cases of impeachment. I believe it is the sense of a great part of America, that this power should be exercised by their governors. It is in several states on the same footing that it is here. It is the genius of a republican government that the laws should be rigidly executed, without the influence of favor or ill-will that, when a man commits a crime, however powerful he or his friends may be, yet he should be punished for it; and, on the other hand, though he should be universally hated by his country, his real guilt alone, as to the particular charge, is to operate against him. This strict and scrupulous observance of justice is proper in all governments; but it is particularly indispensable in a republican one, because, in such a government, the law is superior to every man, and no man is superior to another. But, though this general principle be unquestionable, surely there is no gentleman in the committee who is not aware that there ought to be exceptions to it, because there may be many instances where, though a man offends against the letter of the law, yet peculiar circumstances in his case may entitle him to mercy. It is impossible for any general law to foresee and provide for all possible cases that may arise and therefore an inflexible adherence to it, in every instance, might frequently be the cause of very great injustice. For this reason, such a power ought to exist somewhere; and where could it be more properly vested than in a man who had received such strong proofs of his possessing the highest confidence of the people? This power, however, only refers to offences against the United States, and not against particular states.
Another reason for the President possessing this authority, is this: it is often necessary to convict a man by means of his accomplices. We have sufficient experience of that in this country. A criminal would often go unpunished, were not this method to be pursued against him. In my opinion, till an accomplice's own danger is removed, his evidence ought to be regarded with great diffidence. ... [irrelevant sentence omitted] This power is naturally vested in the President, because it is his duty to watch over the public safety, and as that may frequently require the evidence of accomplices; to bring great offenders to justice, he ought to be intrusted with the most effectual means of procuring it.
I beg leave further to observe, that, for another reason, I think there is a propriety in leaving this power to the general discretion of the executive magistrate, rather than to fetter it in any manner which has been proposed. It may happen that many men, upon plausible pretences, may be seduced into very dangerous measures against their country. It may happen that many men, upon plausible pretences, may be seduced into very dangerous measures against their country. They may aim, by an insurrection, to redress imaginary grievances, at the same time believing, upon false suggestions, that their exertions are necessary to save their country from destruction. Upon cool reflection, however, they possibly are convinced of their error, and clearly see through the treachery and villany [sic] of their leaders. In this situation, if the President possessed the power of pardoning, they probably would throw themselves on the equity of the government, and the whole body be peaceably broken up. Thus, at a critical moment, the President might, perhaps, prevent a civil war. But if there was no authority to pardon, in that delicate exigency, what would be the consequence? The principle of self-preservation would prevent their parting. Would it not be natural for them to say, 'We shall be punished if we disband. Were we sure of mercy, we would peaceably part. But we know not that there is any chance of this. We may as well meet one kind of death as another. We may as well die in the field as at the gallows.' I therefore submit to the committee if this power be not highly necessary for such a purpose.
We have seen a happy instance of the good effect of such an exercise of mercy in the state of Massachusetts, where, very lately, there was so formidable an insurrection. I believe the great majority of the insurgents were drawn into it by false artifices. They at length saw their error, and were willing to disband. Government, by a wise exercise of lenity, after having shown its power, generally granted a pardon, and the whole party were dispersed. There is now as much peace in that country as in any state in the Union.
A particular instance which occurs to me shows the utility of this power very strongly. Suppose we were involved in war. It would be then necessary to know the designs of the enemy. This kind of knowledge cannot always be procured but by means of spies – a set of wretches whom all nations despise, but whom all employ, and, as they would assuredly be used against us, a principle of self-defence would urge and justify the use of them on our part. Suppose, therefore, the President could prevail upon a man of some importance to go over to the enemy, in order to give him secret information of his measures. He goes off privately to the enemy. He feigns resentment against his country for some ill usage, either real or pretended, and is received, possibly, into favor and confidence. The people would not know the purpose for which he was employed. In the mean time, he secretly informs the President of the enemy's designs, and by this means, perhaps, those designs are counteracted, and the country saved from destruction. After his business is executed, he returns into his own country, where the people, not knowing he had rendered them any service, are naturally exasperated against him for his supposed treason. I would ask any gentleman whether the President ought not to have the power of pardoning this man. Suppose the concurrence of the Senate, or any other body, was necessary; would this obnoxious person be properly safe? We know in every country there is a strong prejudice against the executive authority. If a prejudice of this kind, on such an occasion, prevailed against the President, the President might be suspected of being influenced by corrupt motives, and the application in favor of this man be rejected. Such a thing might very possibly happen when the prejudices of party were strong, and therefore no man, so clearly entitled as in the case I have supposed, ought to have his life exposed to so hazardous a contingency.
In the committee debate in which Iredell discussed the pardoning power, other members expressed concerns about the command of the Army and Navy and the power to conclude treaties. The sole comment on reprieves and pardons came two days later from William Lenoir, a State senator and middle-ranking local politician.[53] "This power is necessary with proper restrictions. But the President may be at the head of a combination against the rights of the people, and may reprieve or pardon the whole. It is answered to this, that he cannot pardon in cases of impeachment. What is the punishment in such cases? Only removal from office and future disqualification. It does not touch life or property. He has power to do away [?with] punishment in every other case. It is too unlimited, in my opinion. It may be exercised to the public good, but may also be perverted to a different purpose. Should we get those who will attend to our interest, we should be safe under any Constitution, or without any. If we send men of a different disposition, we shall be in danger. Let us give them only such powers as are necessary for the good of the community." By now, the North Carolina convention was moving towards a refusal to ratify unless and until the Constitution was amended – a stronger line than Virginia had adopted.[54] In playing hard-to-get, the delegates perhaps did not know that New York had ratified on 26 July, although with its own list of proposed amendments. Finding itself isolated in the same recalcitrant camp as Rhode Island, North Carolina fell into line the following year, accompanying its belated endorsement with its own agenda of 26 required amendments.[55] The power of pardon was not mentioned.
New York: Alexander Hamilton and The Federalist. The close-fought battle for ratification in New York produced The Federalist, which would become a classic text in political theory. This collection of eighty-five cogently argued papers, whose authorship was attributed to 'Publius', was in fact a collaborative work by Alexander Hamilton, John Jay and James Madison. There were some differences in emphasis in their respective approaches – Jay, for instance, primarily argued for a strong central government to make possible the successful pursuit of foreign relations – and, on the question of pardon, Hamilton found himself arguing for an unqualified Presidential authority that he did not personally endorse. With the condescension of hindsight, it is possible to dismiss The Federalist as a collection of essays pitched at far too high an intellectual level to influence the average voter. This may well have been true of the State-wide elections in April 1788 to choose members for the ratification convention, by which time publication of the instalments that would become The Federalist was complete: 46 critics of the Constitution were elected against only 19 supporters. But this imbalance simply added to the intensity of focus upon the six-week debate that followed, for which the Publius manifesto proved invaluable preparation. By making tactical concessions, for instance, endorsing the idea of a Bill of Rights and a second, revising national Convention (and also by threatening the secession of New York City if the State stayed out), Jay and Hamilton managed to win a knife-edge decision in favour of ratification, by 30 votes to 27. The textual record certainly makes the Presidential power of pardon appear a minor matter in the overall constitutional controversy. But where a majority of just three votes was the prize – which, in turn, was only possible because a handful of delegates abstained – then every aspect of the argument had to be contested. Fortunately for the federalists, it was the very vehemence of their principal opponent, and the ambiguity of his own qualifications, that gave Hamilton a handle for his two counterattacks.[56] Nonetheless, although The Federalist's two analyses of the pardoning power were among the few extensive discussions of the subject during the ratification debates, both Hamilton's assumptions and his arguments were open to challenge.
New York opponents of the Constitution had already commented on the pardoning power. In October 1787, the first of a series of public letters from 'Brutus' outlined opposition to the proposed Constitution. Brutus was probably Robert Yates, one of New York's three delegates to Philadelphia earlier that year. Along with the State's second representative, John Lansing jr, he had walked out of the Convention in July protesting that it was exceeding its remit by designing a new system of government instead of suggesting improvements to the existing Articles of Confederation. Brutus sounded a bleak warning that transcended the individual clauses and specific competences that had emerged from Philadelphia the previous month: republics were inherently small communities, city states or American commonwealths. To attempt to create a federal republic on a quasi-continental scale was to guarantee the emergence of a tyranny. "In so extensive a republic, the great officers of government would soon become above the controul of the people, and abuse their power to the purpose of aggrandizing themselves, and oppressing them. The trust committed to the executive offices, in a country of the extent of the United States, must be various and of magnitude. The command of all the troops and navy of the republic, the appointment of officers, the power of pardoning offences, the collecting of all the public revenues, and the power of expending them, with a number of other powers, must be lodged and exercised in every state, in the hands of a few."[57] To Brutus, the pardoning power was not in itself objectionable. Rather it formed part of a range of responsibilities that would inevitably combine to create a powerful political elite, detached from the people and beyond their control. It was an alarming prospect.
Shortly afterwards, early in November 1787, the regretful argument of Brutus was restated in fiery terms by 'Cato' in the fourth of another series of antifederalist public letters. Cato distrusted "the vast and important powers of the president" and warned that "his eminent magisterial situation will attach many adherents to him, and he will be surrounded by expectants and courtiers". Like Brutus, Cato listed the pardoning power among the other Presidential powers to warn of potential tyranny, although he gave it a disapproving side-flip: "his power of nomination and influence on all appointment – the strong posts in each state comprised within his superintendance, and garrisoned by troops under his direction – his controul over the army, militia, and navy – the unrestrained power of granting pardons for treason, which may be used to screen from punishment, those whom he had secretly instigated to commit the crime, and thereby prevent a discovery of his own guilt[58] – his duration in office for four years: these, and various other principles evidently prove the truth of the position – that if the president is possessed of ambition, he has power and time sufficient to ruin his country?" Two pages further on, Cato summarised his indictment of the over-mighty President: "he is the general conservator of the peace of the union – he may pardon all offences, except in cases of impeachment, and the principal fountain of all offices and employments. Will not the exercise of these powers therefore tend either to the establishment of a vile and arbitrary aristocracy, or monarchy?"[59]
However, there was a flaw in this denunciation, not so much in argument as in authorship. Cato was the Governor of New York, George Clinton: if anyone in the United States was positioned to become an elective dictator, it was Governor Clinton. He had held the office for a decade, an atypically durable term at that time, and he would eventually serve for eighteen years. State governors were generally chosen by indirect election: New York was again unusual in entrusting the selection to popular vote, although the franchise was limited to prosperous freeholders. Most States limited gubernatorial terms to one or two years: New York permitted three. As Hamilton would point out, whatever mischief a President of the United States might inflict in four years could be equally targeted on the smaller stage of New York in three.[60] Furthermore, the Governor of New York was entitled to exercise the power of pardon on a broad scale. Hamilton would have some trouble in accounting for its restrictions but Clinton, unlike his counterpart in Massachusetts, did not have to share his role with any elected body – except in cases of murder and treason, exceptions that would cause Alexander Hamilton some problems.
The Federalist LXIX, generally attributed to Hamilton, appeared in March 1788, five months after Cato's diatribe. It challenged the claim that the President of the United States would become an elected monarch by emphasising the differences between the American chief executive and the British monarch. Of course, the powers conferred upon the President would necessarily have some apparent similarities but – as Hamilton scornfully put it – "if … there be a resemblance to the king of Great Britain, there is not less a resemblance to the Grand Seignior, to the khan of Tartary, to the Man of the Seven Mountains, or to the governor of New York."[61] Often quoted and cited, The Federalist LXIX is generally regarded as one of the most effective papers in the collection. However, this does not mean that all of its arguments were equally plausible. Hamilton argued that the inability of the Governor of New York to issue pardons in cases of treason was of no importance, since he could shield his subversive minions at every preparatory stage until they were ready to seize power. Presumably he had in mind here the two-centuries-old barbed witticism of the Tudor courtier, Sir John Harington: "Treason doth never prosper? What's the reason?/ for if it prosper, none dare call it treason." Equally strained was Hamilton's reliance on impeachment (and conviction) to argue that a President could not pardon traitors censured by Congress. But impeachment only applied to officials of the United States and, in the early years of the Republic at least, the central bureaucracy would be small – a handful of departmental heads, some civil servants and a few judges. A President who aimed at seizing power would be more likely to conspire with mercenaries and freebooters who – provided they were kept off the federal pay-roll – could not be subject to impeachment and, hence, might be shielded from prosecution however blatant their defiance of lawful authority. It will be observed that this first mention of the pardoning power came in the sixty-ninth instalment of the series, and it is tempting to conclude that Hamilton was essentially box-ticking here. With elections to the ratifying convention looming, it might be asked why Publius had ignored this question: was there something to hide? Hamilton's attempt to deal with it has something of the air of the legendary direction inscribed by a preacher in the margin of his Hellfire sermon: 'Argument weak here. Shout.'[62]
The power of the President, in respect to pardons, would extend to all cases, except those of impeachment. The governor of New York may pardon in all cases, even in those of impeachment, except for treason and murder. Is not the power of the governor, in this article, on a calculation of political consequences, greater than that of the President? All conspiracies and plots against the government which have not been matured into actual treason may be screened from punishment of every kind by the interposition of the prerogative of pardoning. If a governor of New York, therefore, should be at the head of any such conspiracy, until the design had been ripened into actual hostility he could insure his accomplices and adherents an entire impunity.
A President of the Union, on the other hand, though he may even pardon treason, when prosecuted in the ordinary course of law, could shelter no offender, in any degree, from the effects of impeachment and conviction. Would not the prospect of a total indemnity for all the preliminary steps be a greater temptation to undertake and persevere in an enterprise against the public liberty, than the mere prospect of an exemption from death and confiscation, if the final execution of the design, upon an actual appeal to arms, should miscarry? Would this last expectation have any influence at all, when the probability was computed that the person who was to afford that exemption might himself be involved in the consequences of the measure, and might be incapacitated by his agency in it from affording the desired impunity? The better to judge of this matter, it will be necessary to recollect that, by the proposed Constitution, the offense of treason is limited 'to levying war upon the United States, and adhering to their enemies, giving them aid and comfort'; and that by the laws of New York it is confined within similar bounds.
Eleven days later, Hamilton returned to the subject, in The Federalist LXXIV, specifically titled: "The Command of the Military and Naval Forces, and the Pardoning Power of the Executive". The two subjects were interconnected: those who were uneasy about the President's power to pardon tended to link their concerns to his role as commander of the armed forces. Hamilton was on insecure ground here, since (as he broadly hinted in the second paragraph) he had initially favoured associating the Senate in cases of treason. This unease may explain the artificiality of the 'Goldilocks' argument that he advanced in the first section. As so often, the pardoning power was considered exclusively in relation to the execution of traitors. Hamilton asserted that an executive consisting of a single person would balance scruples about taking human life against a reluctance to appear spineless in dealing with towards the criminals, or ambivalent in regard to their crime. The result would be that a President would reach a decision on each case that would be 'just right'. By contrast, any group of men would be liable to goad one another into acts of revenge or – conversely – could not be held individually responsible if they engaged in mistaken acts of mercy. To this, it might have been riposted that Hamilton's confidence in Presidential wisdom was mere assertion: indeed, it really only carried conviction if assumed to apply to George Washington. Much would depend upon the good sense and integrity of future holders of the office, while anyone who questioned General Washington's insistence on executing Major André might not have felt the same confidence in the infallibility of the likely first President. (Such doubters, it should be said, were probably in a minority.) If Senators could be given a voice in the declaration of war and the conclusion of peace treaties (the first giving opportunities for vainglorious rabble-rousing, the second for pusillanimous concession), it was hard to see why they could not be consulted about the hanging of traitors.[63]
However, in the much longer second paragraph below, Hamilton went on to advance what may have been a more persuasive argument. He accepted (or went through the motions of accepting) the argument that there was a case for involving the legislature in the power of pardon for convicted traitors, partly because treason was, by definition, a crime directed against the whole community, but also to guard against the possibility that the President himself might be complicit in the offence committed. Against this, Hamilton repeated his assertion that it was better to entrust such decisions to one individual "of prudence and good sense" rather than risk the vagaries of any collective response. Here, he appealed directly to recent events in Massachusetts. Where an insurrection was the result of widespread discontent, elected representatives were likely to be "tainted" with the same rebellious spirit, to the detriment of the enforcement of law and order. But, for Hamilton, the knock-out argument was the need to provide for a flexible response to internal crisis. In a situation of developing instability, "there are often critical moments, when a well-timed offer of pardon to the insurgents or rebels may restore the tranquillity of the commonwealth". If the consent of elected representatives was required and if the legislature was not in session, that crucial moment might be lost while members were summoned from distant parts. This was precisely what had happened in Massachusetts, where the General Court's lengthy midwinter recess had left a vacuum in any possible conciliation process. The concern would apply with even greater force in a United States that was about to be launched on a continental scale. In response to a suggestion that Congress might temporarily devolve its share of the responsibility upon the President,[64] Hamilton doubted whether constitutional powers could be set aside. He also advanced the more practical objection that any such transfer would imply an early move towards amnesty, which in turn could only intensify resistance. It is plausible to assume that this deft invocation of Shays's Rebellion was more persuasive than the sketching of any number of hypothetical situations: James Iredell would use the same argument in his North Carolina convention speech in July. It was also well chosen in relation to a key battleground in the local contest. Resistance to the new Constitution was strong in upstate New York – and the heartland of Shays's Rebellion had been in nearby western Massachusetts. For some New Yorkers, the case for a strong executive may have moved from the theoretical sphere to one that was direct and practical.[65]
Humanity and good policy conspire to dictate, that the benign prerogative of pardoning should be as little as possible fettered or embarrassed. The criminal code of every country partakes so much of necessary severity, that without an easy access to exceptions in favor of unfortunate guilt, justice would wear a countenance too sanguinary and cruel. As the sense of responsibility is always strongest, in proportion as it is undivided, it may be inferred that a single man would be most ready to attend to the force of those motives which might plead for a mitigation of the rigor of the law, and least apt to yield to considerations which were calculated to shelter a fit object of its vengeance. The reflection that the fate of a fellow-creature depended on his sole fiat, would naturally inspire scrupulousness and caution; the dread of being accused of weakness or connivance, would beget equal circumspection, though of a different kind. On the other hand, as men generally derive confidence from their numbers, they 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. On these accounts, one man appears to be a more eligible dispenser of the mercy of government, than a body of men.
The expediency of vesting the power of pardoning in the President has, if I mistake not, been only contested in relation to the crime of treason. This, it has been urged, ought to have depended upon the assent of one, or both, of the branches of the legislative body. I shall not deny that there are strong reasons to be assigned for requiring in this particular the concurrence of that body, or of a part of it. As treason is a crime levelled at the immediate being of the society, when the laws have once ascertained the guilt of the offender, there seems a fitness in referring the expediency of an act of mercy towards him to the judgment of the legislature. And this ought the rather to be the case, as the supposition of the connivance of the Chief Magistrate ought not to be entirely excluded. But there are also strong objections to such a plan. It is not to be doubted, that a single man of prudence and good sense is better fitted, in delicate conjunctures, to balance the motives which may plead for and against the remission of the punishment, than any numerous body whatever. It deserves particular attention, that treason will often be connected with seditions which embrace a large proportion of the community; as lately happened in Massachusetts. In every such case, we might expect to see the representation of the people tainted with the same spirit which had given birth to the offense. And when parties were pretty equally matched, the secret sympathy of the friends and favorers of the condemned person, availing itself of the good-nature and weakness of others, might frequently bestow impunity where the terror of an example was necessary. On the other hand, when the sedition had proceeded from causes which had inflamed the resentments of the major party, they might often be found obstinate and inexorable, when policy demanded a conduct of forbearance and clemency. But the principal argument for reposing the power of pardoning in this case to the Chief Magistrate is this: in seasons of insurrection or rebellion, there are often critical moments, when a well-timed offer of pardon to the insurgents or rebels may restore the tranquillity of the commonwealth; and which, if suffered to pass unimproved, it may never be possible afterwards to recall. The dilatory process of convening the legislature, or one of its branches, for the purpose of obtaining its sanction to the measure, would frequently be the occasion of letting slip the golden opportunity. The loss of a week, a day, an hour, may sometimes be fatal. If it should be observed, that a discretionary power, with a view to such contingencies, might be occasionally conferred upon the President, it may be answered in the first place, that it is questionable, whether, in a limited Constitution, that power could be delegated by law; and in the second place, that it would generally be impolitic beforehand to take any step which might hold out the prospect of impunity. A proceeding of this kind, out of the usual course, would be likely to be construed into an argument of timidity or of weakness, and would have a tendency to embolden guilt.
Despite Hamilton's fervent advocacy, the Presidential pardoning power came under attack at the New York ratifying convention. A key personality here was Gilbert Livingston, small-town lawyer and storekeeper, who was also twice briefly a member of the State Assembly. He was elected as an antifederalist but eventually voted, with some reluctance, to ratify, although with heavy insistence on the need for amendments: in a situation where the outcome depended upon a three-vote majority, the motivation of key individuals was of very great importance. On 4 July 1788 (as it happened, the twelfth anniversary of the Declaration of Independence), he moved an amendment to the powers of the President as set out in Article 2 of the Constitution: "Resolved, as the opinion of this committee, that the President of the United States should never command the army, militia, or navy of the United States, in person, without the consent of the Congress; and that he should not have the power to grant pardons for treason, without the consent of the Congress; but that, in cases where persons are convicted of treason, he should have authority to grant reprieves, until their cases can be laid before the Congress."[66] Once again, Livingston's proposal demonstrated the extent to which reservations about the pardoning power were linked to concerns about the role of the President as commander-in-chief. Curiously, his proviso allowing the deferral of the execution of traitors until Congress could consider their fate was very close to the proposal that Hamilton had advanced in Philadelphia a year earlier.
In their formal ratification document, passed on 26 July, the New York delegates made it clear that they expected their demands for change to be accepted, even to the extent that Congress should act as if they had already been embodied in the Constitution: "the Convention do in the Name and Behalf of the People of the State of New York enjoin it upon their Representatives in the Congress, to Exert all their Influence, and use all reasonable means to Obtain a Ratification of the following Amendments to the said Constitution in the manner prescribed therein; and in all Laws to be passed by the Congress in the meantime to conform to the spirit of the said Amendments as far as the Constitution will admit". There were thirty-three subjects that required attention, and one of them was the point that had been raised by Gilbert Livingston: "the Executive shall not grant Pardons for Treason, unless with the Consent of the Congress; but may at his discretion grant Reprieves to persons convicted of Treason, until their Cases, can be laid before the Congress." New York was the only State formally to raise the pardoning power in its criticisms of the new system of government. No action followed.
Reflections A review of debate on the President's power of pardon in 1787-8 produces two overwhelming conclusions: there was very little of it, and it largely failed to consider aspects of the question which might well have been foreseen. Hypothetical examples of the exercise of presidential mercy were almost entirely confined to cases of treason, and hence conducted against the background of the 'sanguinary' punishments referred to by Alexander Hamilton, leading to an 'all-or-nothing' approach to the wider question of clemency. James Wilson was unusual in referring to the use of pardon in fraud cases, but no other major figure seems to have contemplated the development of federal law on commercial matters, which would require enforcement by criminal prosecution. Nor was there any evident realisation that the enforcement of the decisions of Congress would require a penitentiary system, which would generate further challenges relating both to conviction and sentence. Article 2, section 2 of the Constitution referred to "Reprieves and Pardons" – was the inversion of alphabetical order intended to be significant? – but the power to reprieve was rarely discussed, and usually taken to mean stay of execution until some advisory body – the Senate or Congress – might be consulted, an arrangement that was not provided for by the document itself. Consequently, nobody seems to have appreciated, or at least thought worth highlighting, that Presidents would be able to reduce or even to overturn prison sentences without formally expunging the convictions that had led to them.
Apologists for the new Constitution placed heavy emphasis upon impeachment as the mechanism that would prevent Presidents from exercising tyrannical power. It might well have been objected that impeachment was always going to be a sledgehammer procedure, and that its limitation to officers of the United States would considerably reduce the range of potential targets, since the fledgling republic was likely to employ relatively few personnel.[67] In the event, impeachment was rarely invoked and generally ended in acquittal (although, of course, the threat of such disgrace may have helped keep judges and politicians honest). There were only seven attempts to invoke the process during the first century of the Constitution. In only two instances, both directed at delinquent judges, were there convictions. The two high-profile cases, the prosecution of Supreme Court Justice Chase in 1803 and of President Andrew Johnson in 1868, were notable failures. Here, of course, one crucial element was the development of a party system: the two parties were usually sufficiently closely balanced to ensure that neither could assemble the required two-thirds majority to convict in the Senate. Whether the Founding Fathers ought to have anticipated this phenomenon is a question that lies beyond this enquiry. In the event, impeachment would place no practical restrictions upon the pardoning power of any future President.
Two personalities hovered over the Philadelphia Convention and the subsequent ratification process: Daniel Shays and George Washington. Perhaps it is unfair to place so much emphasis upon Shays, since modern scholarship tends to regard the ex-Army captain as an accidental leader of the rebellion that became associated with his name. Yet there can be little doubt that the disturbances in Massachusetts – and the inability of the Confederation Congress to intervene – proved a powerful influence behind the determination to establish a strong central government. Specifically, Shays's Rebellion helped shape a very wide power of pardon, which was particularly intended to facilitate amnesty in the face of crisis. The President could pardon in advance of conviction and was not required to consult with legislators who might not be available when decision was imperative. "For all it appears," concluded a frustrated commentator in 2012, "the power can be exercised for any reason or no reason at all."[68] In addition, the likelihood that the prerogative of mercy would be exercised (or withheld) by the heroic figure of George Washington provided some reassurance against its abuse. It seems reasonable to assume (although it might be difficult to document) that the active citizens of 1787-8 did not discuss the new office of a national Presidency without also speculating on the identity of the first incumbent.[69] Even so, there seems to have been an undercurrent of genuine concern that Presidents should have the power (and the responsibility) of determining literally life-or-death questions in relation to convicted traitors without some council of advice. Yet it is difficult to see how such an assemblage of disinterested wisdom could have been put together. Alexander Hamilton had initially wished to share the responsibility with the Senate, but Hamilton envisaged a kind of life peerage, whose members would have been able to detach themselves from sectional identifications. More to the point, many of them might also have taken up residence in the federal capital, where they would have been conveniently available for consultation at short notice. Some feared that the Senate that emerged from Philadelphia would be too close to the President, but the Connecticut Compromise evidently envisaged that the Senate would function as the States' House. Not only did this role make it difficult for its members to act with disinterested high-mindedness, but it also probably ensured that Senators would be long-distance commuters, keen to nurture their sectional roots, who might not be available when their advice on clemency was urgently needed.[70] It was simpler and more straightforward to entrust the pardoning power to the President and to hope, as Hamilton argued, that the solemn nature of the responsibility would pressure the chief executive to do the right thing. All the same, in this matter as in other aspects of the new system of government, Americans might have heeded the sage warning of the Federal Farmer: "we may have, for the first president, and, perhaps, one in a century or two afterwards … a great and good man, governed by superior motives; but these are not events to be calculated upon in the present state of human nature."[71]
ENDNOTES
[1] The principal sources explored are Max Farrand, ed., The Records of the Federal Convention of 1787 (3 vols, New Haven, Conn., 1911) [cited as Farrand]; J. Elliot, ed., The Debates in the Several State Conventions on the Adoption of the Federal Constitution,... (5 vols, Philadelphia 1861) [cited as Elliot] and P.L. Ford, ed., Pamphlets on the Constitution of the United States, Published during its Discussion by the People, 1787-1788 (Brooklyn, NY, 1888), 331-2 [cited as Ford]. Ford published a further collection of material five years later under a similar title: Essays on the Constitution of the United States, Published during its Discussion by the People, 1787-1788 (Brooklyn, NY, 1892). I have had access to the first two volumes of the 7-volume series, H.J. Storing, ed., The Complete Anti-Federalist (Chicago, 1981) [cited as Storing]. Storing, ii, covers the major expressions of the anti-federalist viewpoint. Some documents are given, sometimes with slight differences in punctuation, in [R. Yates], Secret Proceedings and Debates of the Convention Assembled at Philadelphia: For the Purpose of Forming the Constitution of the United States of America... (Albany, 1821). Where documents are widely available, e.g. the United States Constitution itself, I have omitted endnote references.
[2] The multi-volume series published by the State Historical Society of Wisconsin between 1976 and 2001, The Documentary History of the Ratification of the Constitution, is available online through the University of Wisconsin-Madison Libraries via https://search.library.wisc.edu/digital/ATR2WPX6L3UFLH8I.
[3] Eighteenth-century usage and spelling also sometimes varies from our own. I have omitted intruding [sic] except in one instance of a missing apostrophe. Iredell's vocabulary (whether archaic or just plain awkward), can be indigestible, e.g. 'proportionably' and 'seldomer'.
[4] In fact, as the Federal Convention began its deliberations, a convict fleet was heading for New South Wales to establish a penal settlement that would become the foundation of modern Australia. Of the 778 felons transported to Botany Bay, about one in ten had been spared the gallows: J. Cobley, The Crimes of the First Fleet Convicts (Sydney, 1970). John Bails, a labourer from Berkshire, had been sentenced to be hanged for violent robbery "but his Majesty hath been graciously pleased to extend his royal mercy to him on condition of his being transported beyond the seas for and during the term of 14 years" (12). Margaret Dawson, a Londoner, was sentenced to death for theft, but "was humbly recommended to mercy by the Prosecutor and the Jury, on account of her youth, being only fifteen, and it appearing to be her first offence." (74-5) Another convict who escaped the gallows is discussed in Ged Martin, "From Little Ilford to Botany Bay: Frances Davis, cross-dressing First Fleeter": https://www.gedmartin.net/martinalia-mainmenu-3/332-cross-dressing-first-fleeter. In practice, commutation of a death sentences was determined on recommendation from the judge who had imposed the sentence, an overlap between the executive and judicial functions that would have shocked the Founding Fathers. However, since hangings were routinely carried out immediately after Assize sessions, there was no other practical way of interposing mercy.
[5] Alexander Johnston, a professor at the College of New Jersey, summarised the State precedents in a centenary review of the Constitution: " The President’s pardoning power was drawn from the example of the States; they had granted it to the governors (in some cases with the advice of a council) in all the States except Connecticut, Rhode Island, and Georgia, where it was retained to the Legislature, and in South Carolina, where it seems to have been forgotten in the Constitution of 1778, but was given to the Governor in 1790." A. Johnston, "The First Century of the Constitution", New Princeton Review, iv (September 1887), 175-90, esp., 180-1. Johnston was quoted by James Bryce in The American Commonwealth (2 vols, London, 1888), i, 547.
[6] Thus President Ford pardoned ex-President Nixon "for all offenses against the United States which … [he]… has committed or may have committed or taken part in during the period from January 20, 1969 through August 9, 1974."
[7] B. Williams, The Whig Supremacy, 1714-1760 (Oxford, 1960), 23-4; J.B. Owen, The Eighteenth Century 1714-1815 (London, 1974), 99. The quotation is from Owen.
[8] The apparent revival of impeachment in Britain proved short-lived. The Hastings trial dragged on for seven years before his acquittal on all charges in 1795. Ten years later, a prosecution was launched against Viscount Dundas, Pitt's Navy minister. This, too, failed a year later. Abortive attempts were made to mobilise House of Commons procedure against Lord Palmerston in 1848 and Tony Blair in 2004: the first was proposed by a conspiracy theorist, the second by a Welsh Nationalist. Modern constitutional authorities seem to take the view that another impeachment in Britain is so unlikely that it would be embarrassing to abolish the provision.
[9] " All the details of the process of impeachment, as adopted by the Convention, may be found in the constitutions of Delaware, Massachusetts, New Hampshire, New York, Pennsylvania, South Carolina, Vermont, and Virginia, even to the provision, in the South Carolina system, that conviction should follow the vote of 'two-thirds of the members present'. (It should be said, however, that the limitation of sentence, in case of conviction, to 'removal from office and disqualification' for further office-holding, is a new feature.)" Johnston, New Princeton Review, iv (September 1887), 179. Vermont had adopted constitutions in 1777 and 1786 while claiming to be an independent republic. Its influence in Philadelphia was probably minimal.
[10] The details are supplied in the provisions of Article I, section 3: "The Senate shall have the sole Power to try all Impeachments. When sitting for that Purpose, they shall be on Oath or Affirmation. When the President of the United States is tried, the Chief Justice shall preside: And no Person shall be convicted without the Concurrence of two thirds of the Members present. Judgment in Cases of Impeachment shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States: but the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law." Impeachment was sharply distinguished from the use of legal lynching legislation to declare an offender guilty and impose horrific penalties. Article 1, section 9 baldly declared: "No Bill of Attainder or ex post facto Law shall be passed." This was modified by Article 3, section 3: "The Congress shall have Power to declare the Punishment of Treason, but no Attainder of Treason shall work Corruption of Blood, or Forfeiture except during the Life of the Person attainted." The reference to attainder was not mere historical pageantry. The provision was used by the Supreme Court in 1867 (in the case of Ex parte Garland) to strike down the Ironclad Oath, an attempt to bar from legal practice anyone unable to swear that they had not supported the Confederacy,
[11] In June 1787, the Massachusetts Council refused to agree to a pardon for one of the leaders of the uprising, who faced the gallows, although its simultaneous authorisation of a stay of execution indicated internal divisions. R.A. Feer, Shays's Rebellion (New York, 1988), 417-19.
[12] Feer, Shays's Rebellion, 251, 267, 335-6, 415, 419.
[13] P. Webster, A Dissertation on the Political Union and Constitution of the Thirteen United States of North-America… (Philadelphia, 1783), 36-8.
[14] Farrand, iii, 629, 398. Madison's Notes on the proceedings of the Philadelphia Convention were published in 1840, after his death.
[15] Farrand, iii, 625.
[16] One legendary history, Clinton Rossiter's 1787: the Grand Convention (New York, 1966) ignored the subject of pardon, which was mentioned only in documentary quotation.
[17] The Virginia and New Jersey Plans have, of course, been often reprinted, e.g. Rossiter, 1787: the Grand Convention, 361-3, 367-9.
[18] Farrand, i, 64-5. It may be noted that Wilson was a Scot, who had emigrated in his early twenties. His motion was seconded by Charles Pinckney of South Carolina, who had practised Law in England for some years. James Iredell, an articulate defender of the Presidential pardoning power in the North Carolina ratification debates, had emigrated from England at the age of 17. He remained a devout Anglican. Alexander Hamilton, author of The Federalist sections on the pardoning power, had been born outside the United States, and spent his early life in the West Indies. Their provenance hardly proves Randolph's charge that a single executive would be a step to an American George III, but their shared backgrounds are of interest.
[19] Rossiter, 1787: the Grand Convention, 365.
[20] Farrand, i, 292. There are small differences in capitalisation and punctuation in Yates, 225-6, who gave 'governor', and Elliot, i, 179-80.
[21] The Randolph memorandum was one of the earliest documents to be photo-reproduced: W.M. Meigs, The Growth of the Constitution in the Federal Convention of 1787… (Philadelphia, 1899), Appendix. This showed that the text had certainly been worked hard.
[22] Farrand, ii, 146.
[23] Farrand, ii, 171-2. The provision then formed part of Article 12.
[24] Farrand, ii, 185. The section was accidentally double-numbered as Article 9. The draft was considerably rearranged in the final version of the document accepted on 17 September. The preamble constituted one symbolic difference between the August and September versions: the first spoke in the name of "We the people of New Hampshire [etc]…". Apart from being cumbersome, it asserted the consent of the inhabitants of "Rhode-Island and Providence Plantations", but the smallest State with the longest name had refused to send a delegation. The Committee of Style substituted "We the people of the United States…".
[25] Widely quoted, e.g. C. Rossiter, The American Presidency (2nd ed., London, 1960, cf. 1st ed. 1956), 81.
[26] Farrand, ii, 419-20 (Madison's notes), 411 (Journal of the Convention). The withdrawal of two New York delegates left Alexander Hamilton unable to vote; New Jersey seems to have been absent that day, leaving only ten voting States. A table of votes recorded in the Convention's Journal (Farrand, ii, 412) does not make clear who proposed the third amendment: since Connecticut was among the six States voting against, it seems unlikely to have come from Sherman.
[27] Farrand, ii, 426.
[28] Farrand, ii, 563-4.
[29] It has to be said that Madison did not record his own statement here with great clarity. He seems to have meant that, ideally, he would like the Senate to act as a council of advice, presumably departing from its usual legislative role to guide the President in the cases of treason. This would be preferable to either involving both Houses of Congress, or leaving the President to act alone. Madison's insertion of a comma in the sentence may have been syntactically correct in the eighteenth century, but it causes confusion today. We may also note that Madison did not make clear whether the President would be required to bow to the disinterested wisdom of the Senators.
[30] Farrand, ii, 626-7.
[31] Even in the States where the federalists were strongest, doubts were sometimes expressed. William Symmes, a lawyer in Andover, Mass., privately expressed his unease regarding the responsibility placed on the President: "pardoning or refusing to pardon offences is a very delicate matter. Yet he has no Council, no assistance, no restraint". J. Kaminski and G.J. Gaspare, eds, The Documentary History of the Ratification of the Constitution, xiv (ii): Commentaries on the Constitution... (Madison, Wisc., 1983), 114. In the later stages, as the struggle for ratification became more intense, these criticisms were likely to surface.
[32] Virginia contained about three-quarters of a million people at the census of 1790. North Carolina's population was actually larger than that of New York but, as in Virginia, the political impact of its demography was inflated by its slave labour force. New York was in fact the 5th State by population, behind Pennsylvania and Massachusetts, but the key economic role of the port of New York made its participation vital. The complication caused by Rhode Island seems almost comical. The tiny State initially refused to summon a ratifying convention and held a referendum instead: the result was 11 to 1 for rejection – but fewer than 3,000 votes were cast.
[33] Farrand, iii, 158 (27 November 1787).
[34] Elliot, ii, 531,538. McKean's speech is given in several sources with the usual variations in capitalisation, e.g. https://archive.csac.history.wisc.edu/pa_8.pdf.
[35] R. Ketcham, ed., The Anti-Federalist Papers and the Constitutional Convention Debates (New York, 2003), 261.
[36] P.L. Ford, Essay (1892), 234, 240. The newspaper was the New Haven Gazette.
[37] Letters from the Federal Farmer to the Republican in Storing, ii, 348. The paragraph, of miscellaneous objections, began: "I might observe more particularly upon several other parts of the constitution proposed; but it has been uniformly my object in examining a subject so extensive, and difficult in many parts to be illustrated, to avoid unimportant things, and not to dwell upon points not very material." The traditional attribution to Richard Henry Lee is now doubted: Lee's subsequent comment that "the power of pardoning … could be nowhere so well placed as in the President", where its exercise would be "safe and convenient" tends to confirm the revisionist view. Letter XX is also given in https://leefamilyarchive.org/history-papers-essays-fedfarmer-18/.
[38] Elliot, i, 495. Also Ford, 332; Storing, ii, 12; https://www.virginiamemory.com/docs/MasonsObjections.pdf.
[39] Elliot, iii, 497 (18 June 1788).
[40] Elliot, iii, 498.
[41] Elliot, iii, 17. Like most Virginia politicians, George Nicholas was a slave-owner. Soon after the State convention, he resettled in Kentucky.
[42] Elliot, iii, 497.
[43] Randolph was unusual among contemporary pamphleteers in publishing under his own name. Letter on the Federal Constitution, October 16, 1787… in Ford, 261-76, esp. 275.
[44] The syntax of the ratification document is awkward: "With these impressions with a solemn appeal to the Searcher of hearts for the purity of our intentions and under the conviction that whatsoever imperfections may exist in the Constitution ought rather to be examined in the mode prescribed therein than to bring the Union into danger by a delay with a hope of obtaining Amendments previous to the Ratification…"
[45] Elliot, iii, 657-61; https://avalon.law.yale.edu/18th_century/ratva.asp.
[46] One of the proposed amendments would have decreed that "no person shall be capable of being President ... of the United States for more than eight years in any term of sixteen years". George Washington, who was 56, would hardly have taken offence.
[47] The original edition of Iredell's pamphlet seems to be lost. The text was published in G.J. McRee, Life and Correspondence of James Iredell … (2 vols, New York, 1858), ii, 199-202, and in various versions since, e.g. Ford, 350-4. All later versions have followed McRee in rendering the text in a continuous paragraph. I have broken the sub-topics into separate paragraphs. Iredell's pamphlet was dated 8 January 1788. It was published under the authorship of 'Junius' but evidently attributed to Iredell at the time. (McRee, ii, 186).
[48] Iredell may have had a point in deriding theorists who believed they could provide for every eventuality. Article 7, section 1 of the 1870 Constitution of the State of California was perhaps a warning in its complexity: "The Governor shall have the power to grant reprieves, pardons, and commutations of sentence, after conviction, for all offences except treason and cases of impeachment, upon such conditions, and with such restrictions and limitations, as he may think proper, subject to such regulations as may be provided by law relative to the manner of applying for pardons. Upon conviction for treason, the Governor shall have power to suspend the execution of the sentence until the case shall be reported to the Legislature at its next meeting, when the Legislature shall either pardon, direct the execution of the sentence, or grant a further reprieve. The Governor shall communicate to the Legislature, at the beginning of every session, every case of reprieve or pardon granted, stating the name of the convict, the crime for which he was convicted, the sentence, its date, the date of the pardon or reprieve, and the reasons for granting the same. Neither the Governor nor the Legislature shall have power to grant pardons, or commutations; of sentence, in any case where the convict has been twice convicted of felony, unless upon the written recommendation of a majority of the Judges of the Supreme Court." I am puzzled that treason could have been an offence against State law. Bryce, The American Commonwealth, i, 701-2.
[49] The footnote was as follows: "I have since found that in the constitutions of some of the States there are much stronger restrictions on the Executive authority in this particular than I was aware of. In others the restriction only extends to prosecutions carried on by the General Assembly, or the most numerous branch of legislature, or a contrary provision by law; Virginia is in the latter class. But when we consider how necessary it is in many cases to make use of accomplices to convict their associates, and what little regard ought in general to be paid to a guilty man swearing to save his own life, we shall probably think that the jealousies which (by prohibiting pardons before convictions) even disabled the Executive authority from procuring unexceptionable testimony of this sort, may more fairly be ascribed to the natural irritation of the public mind at the time when the constitutions were formed, than to an enlarged and full consideration of the subject. Indeed, it could scarcely be avoided, that when arms were first taken up in the cause of liberty, to save us from the immediate crush of arbitrary power, we should lean too much rather to the extreme of weakening than of strengthening the Executive power in our own government. In England, the only restriction upon this power in the King, in case of Crown prosecutions (one or two slight cases excepted) is, that his pardon is not pleadable in bar of an impeachment. But he 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."
[50] William Lenoir, also quoted below: Elliot, iv, 204.
[51] P. Maier, Ratification… (New York, 2010), 411, and 406-23 for Iredell's key role in the North Carolina convention.
[52] Elliot, iv, 110-12. Iredell's speech was reported in a few chunky paragraphs. I have further divided them.
[53] Elliot, iv, 204.
[54] Maier, Ratification, 421-3.
[55] Elliot, iv, 244-7.
[56] The Federalist is also known as The Federalist Papers (e.g. in a useful Library of Congress research guide: https://guides.loc.gov/federalist-papers/full-text). There are so many editions that I simply cite Hamilton's two discussions by number, in their conventional Roman numeral form, LXIX (14 March 1788) and LXXIV (25 March 1788). Max Beloff accepted that the arguments of The Federalist were too long and too scholarly to have mass appeal, but pointed out that the narrow vote for ratification meant that "an argument did not need to be very widely circulated in order to exercise its influence". M. Beloff, ed., The Federalist… (Oxford, 1948), x.
[57] Storing, ii, 371; https://teachingamericanhistory.org/document/brutus-i/.
[58] Both the argument and the wording here suggest the influence of Mason's objection that the power of pardon might be used by a President "to screen from punishment those whom he had secretly instigated to commit the crime, and thereby prevent a discovery of his own guilt" (italics added).
[59] Storing, ii, 114, 116; https://teachingamericanhistory.org/document/cato-iv/.
[60] In The Federalist LXIX, Hamilton implied that Clinton illicitly extended the cope of his authority, "if we are to interpret the meaning of the constitution of the State by the practice which has obtained under it." Of course, this was an argument that could rebound on those arguing for a strong Presidency.
[61] The Grand Seignior was the Sultan of Turkey; the khan of Tartary was Genghis Khan, a central Asian leader feared in medieval Europe. The Man of the Seven Mountains was a (predictably) mysterious figure from the Book of Revelations ("And here is the mind which hath wisdom", Revelations 17:9).
[62] The Federalist has appeared in many editions. LXIX is conveniently available via https://guides.loc.gov/federalist-papers/text-61-70.
[63] William Howard Taft was a jurist who did attempt to act high-mindedly during his 1909-13 Presidency, although the approach was not necessarily to his political advantage. Reflecting on the responsibilities of the office, he later wrote: "The duty involved in the pardoning power is a most difficult one to perform, because it is so completely within the discretion of the Executive and is lacking so in rules or limitations of its exercise. The only rule he can follow is that he shall not exercise it against the public interest." W.H. Taft, Our Chief Magistrate and his Powers (New York, 1916), 121. For Taft's 1916 reflections, https://www.gedmartin.net/martinalia-mainmenu-3/435-taft-on-pardon.
[64] The Federalist LXXIV does not indicate whether this suggestion was a hypothetical argument invented by Hamilton himself.
[65] The Federalist LXXIV is available via https://guides.loc.gov/federalist-papers/text-71-80.
[66] https://teachingamericanhistory.org/resource/newyorktimeline/. Livingston's amendment was recorded as referring to Article 2, section 1, a mistake for Article 2, section 2.
[67] The potential range of targets was further reduced in 1797 by the decision that a corrupt Senator was not an officer of the United States.
[68] Paul Rosenzweig in https://www.heritage.org/the-constitution/report/federalist-conception-the-pardon-power. But this view may be modified by the arguments of Zachary J. Broughton in Western New England Law Review, xli (2019): https://digitalcommons.law.wne.edu/cgi/viewcontent.cgi?article=1815&context=lawreview.
[69] In the event, Washington issued 16 pardons during his two terms in office. The most notable, in public terms, was the partial (but broad) amnesty granted in 1795 to participants in the previous year's Whiskey Rebellion in Pennsylvania, a sequel to the Massachusetts disturbances of 1786-7. He also pardoned two individuals convicted of treason in association with that uprising. Having summoned and personally led a militia force of over 12,000 to suppress the insurrection, Washington could act from a position of strength.
[70] One possible alternative to consultation with the Senate or Congress was the establishment of a separate council of advice. However, the argument for such a body to regulate pardons would almost certainly extend to the control of other aspects of executive authority. The dissenting minority in the Pennsylvania convention called the President's power of pardon a "dangerous and improper mixture of the executive with the legislative and judicial". They proposed that "the supreme executive powers ought to have been placed in the president, with a small independent council, made personally responsible for every appointment to office or other act, by having their opinions recorded; and that without the concurrence of the majority of the quorum of this council, the president should not be capable of taking any step." Ketcham, ed., The Anti-Federalist Papers and the Constitutional Convention Debates, 261. Perhaps the closest approximation to a 'wise men' body would be the Supreme Court. But reference of proposed pardons to its Justices would again cross the boundary between the executive and the judiciary. While the Constitution provided for a Supreme Court, it was left to the first Congress to establish the institution, which first met in 1790.
[71] Letters from The Federal Farmer to The Republican, XIV (17 January 1788).