Federalist Papers Discuss Presidential Power to Pardon

US Constitution, Article 2 Section 2

Section 2 The President shall . . . have Power to Grant Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment.

Power to pardon in other countries

The United Netherlands is a confederacy of aristocrats. It confirms the lessons we have discussed. . . The chief executive of the union is a hereditary prince. . . As a governor, he appoints town officials, enforces local laws, is the local judge, and has the power of pardon. Federalist Paper #20[paragraphs 1,5]

Power to pardon in States

In Pennsylvania, the legislature . . . has some power to pardon, normally an executive power. #47[14]

Virginia's Constitution declares, "that the legislative, executive, and judiciary departments shall be separate and distinct; so that neither exercise the powers properly belonging to the other; nor shall any person exercise the powers of more than one of them at the same time, except that the justices of county courts shall be eligible to either House of Assembly." . . . in one case, the legislature has the executive power of pardon. #47[17]

The constitution of Georgia declares "that the legislative, executive, and judiciary departments shall be separate and distinct, so that neither exercises the powers properly belonging to the other." However, the legislature appoints all members of the executive and it has the executive power of pardon. The legislature even appoints justices of the peace. The constitution of Georgia declares "that the legislative, executive, and judiciary departments shall be separate and distinct, so that neither exercises the powers properly belonging to the other." However, the legislature appoints all members of the executive and it has the executive power of pardon. The legislature even appoints justices of the peace. #47[20]

Presidential Power to Pardon

. . . The power of the President, in respect to pardons, would extend to all cases except impeachment.

The governor of New York can pardon even impeachment, except for treason and murder. Isn’t the power of the governor, as far as political clout in this area, greater than that of the President? A group of people could conspire against the State government. If their plot is discovered before they take treasonous actions, the governor can pardon them. They won’t be punished. If a governor of New York led a conspiracy, until the hostilities actually started, he could insure his accomplices entire impunity.

On the other hand, the President of the United States can pardon treason when prosecuted in the ordinary course of law. But he could not shelter an offender from the effects of impeachment and conviction.

If the governor of New York led a conspiracy against public liberty and if the plan was discovered before it was carried out, New York’s governor could pardon his coconspirators, something the President could not do. If the plan was carried out, the President might be able to pardon his coconspirators. However, if the coconspirators realized that the President might be impeached and convicted, they would also realize that he would be unable to pardon them during any stage of planning or execution of the plan. There would be a greater temptation to continue a conspiracy with the governor of New York than the President. #69[6]

He is authorized to grant “reprieves and pardons for offenses against the United States, except in cases of impeachment.”

Humanity and good policy dictate that the pardoning power should be available. Every country’s criminal code is very severe. Without the power to pardon cases of unfortunate guilt, justice would be too cruel.

Feelings of responsibility are stronger as fewer people are involved. Therefore, we may infer that a single man would most carefully study the motives that might plead for a mitigation of the rigor of the law. And one man is less likely to shelter a proper target of its vengeance. When the fate of a person depended on his sole fiat, he would be scrupulous and cautious. Equal caution, though of a different kind, would come from the dread of being accused of weakness or connivance.

On the other hand, men generally derive confidence from a group. A group of men with this power might often encourage each other’s inflexibility. A group might be less attuned to suspicious apprehensions or censure for an injudicious or affected clemency. For these reasons, one man is a better dispenser of the government’s mercy than a group.

The Presidential power of pardoning has only been questioned in relation to the crime of treason. It has been urged that pardons for treason should depend on one or both houses of the legislature agreeing.

There are strong reasons for requiring this concurrence. Treason is a crime against the society. When an offender has been found guilty, it seems like the legislature should decide if he should be pardoned. And the Chief Executive ought not to be entirely excluded.

But there are also strong objections to such a plan. A single man of prudence and good sense is better fitted to balance the motives that may plead for and against a pardon, than any group of people.

It is important to remember that treason will often be connected with seditious acts by a group of people in the community, as recently happened in Massachusetts. In these cases, the people’s representatives may feel the same spirit that motivated the offense. And when parties are equally matched, the secret sympathy of friends of the condemned person might bestow impunity where the terror of an example was necessary.

On the other hand, when the causes of the sedition inflame the resentments of the majority party, they might be obstinate and inexorable when policy demands clemency.

But the principal argument for giving the power of pardoning in this case to the Chief Executive is this: during times of insurrection or rebellion, there are often critical moments when a well-timed offer of pardon to the insurgents or rebels may restore the tranquility of the nation. And if the time passed with no action, it may never be possible afterwards to recall. It takes time to convene the legislature or one of its houses. The golden opportunity could be lost. The loss of a week, a day, or an hour may sometimes be fatal.

It may be suggested that the President could be given the power to pardon in such a situation. There are two problems with this suggestion. First, in a limited Constitution, the power could probably not be delegated by law. Second, it would be unwise to take any step before hand that might hold out the possibility of impunity. Giving the President this power, out of the usual course, could be seen as timidity or weakness. And it would have a tendency to embolden guilt. #74[2-5]

All quotes from The Federalist Papers: Modern English Edition Two