In the annals of American history, the power of the President to grant clemency, including pardons and commutations, has remained a source of fascination and controversy. This authority, deeply rooted in centuries of legal tradition, offers a unique lens through which we can explore the evolution of governance, justice, and executive power. Join us as we embark on a journey through time to understand the origins, applications, and implications of the presidential power of pardon.
The presidential power to extend mercy through pardons has a lineage that traces back to a time when Anglo-Saxons ruled over England. It is a practice that predates the existence of modern republics and has been exercised by emperors and kings throughout the ages.
The first written record of pardoning power among Anglo-Saxon rulers can be found in Section 6 of the king’s statutes, during the reign of King Ine (668-725 AD). This early legislation granted the king the authority to decide the fate of individuals involved in altercations within his castle.
The formalization of the king’s pardoning authority occurred during the Norman Conquest (1066 AD) with the Codes of William the Conqueror (1066–1087). These codes expanded the king’s power to include matters of thievery and insurrection.
Subsequent rulers, such as Henry I (1100-1135 AD), the son of William the Conqueror, continued to broaden the scope of pardoning power. It came to encompass outlawry, defiance of writs, harm to servants, and disturbance of the peace.
As the American colonies took shape and the Revolutionary War unfolded, the tradition of pardoning power remained deeply ingrained in the English monarchy. The framers of the U.S. Constitution drew inspiration from British precedent when incorporating the presidential power of pardon into Article II, Section 2.
The Constitution grants the President the authority “to pardon and grant reprieves for crimes committed against the United States, with the exception of impeachment.” However, the vagueness of this language left room for interpretation.
The role of interpreting the extent of the President’s pardoning power fell to the courts, with Chief Justice Marshall asserting in United States v. Wilson (1833) that the President’s power was nearly as extensive as that of English kings.
Despite this interpretation, not all legal scholars were comfortable with the idea of vesting the U.S. President with the authority of an English monarch. Justice McClean, in Ex parte Wells (1855), expressed concerns about replicating the power of the British sovereign in a republican chief magistrate.
The Threefold Purpose of Pardons
Throughout U.S. history, Presidents have utilized the power of pardon for various purposes, often falling into three main categories:
Pardons allow Presidents to strike a balance between the demands of justice and the exercise of mercy. They offer an opportunity to mitigate the consequences of a conviction and offer a fresh start.
Pardons can be strategic tools to implement public policy effectively. For example, offering clemency in exchange for cooperation with authorities can aid in gathering crucial information.
In times of rebellion or insurrection, pardoning power can be crucial for maintaining peace. Alexander Hamilton, in The Federalist No. 74, recognized this vital role of the President in quelling unrest.
Historical Examples of Presidential Clemency
Presidents have consistently exercised their pardoning power throughout history, often for compelling reasons. Some notable examples include:
George Washington and John Adams granting clemency to those involved in the Whiskey Rebellion.
Thomas Jefferson pardoning a man found guilty of sedition for dissenting from federal policy.
James Madison’s pardon of the governor of Michigan Territory, who had been condemned to death for surrendering Fort Detroit.
President Buchanan’s pardon of Mormon leader Brigham Young and others for their involvement in the Utah War.
While the power of pardon is firmly established, questions about its scope and limitations continue to be raised. Chief Justice Taney, in Fleming v. Page (1850), acknowledged the influence of English jurisprudence but questioned its suitability for dividing political power in the American context.
Early Presidential Pardons: George Washington issued the first presidential pardon in 1795. He pardoned two men who had been involved in the Whiskey Rebellion, setting a precedent for the exercise of this authority.
Influence of the Founding Fathers: Founding Fathers such as Alexander Hamilton and James Madison played pivotal roles in shaping the inclusion of the pardon power in the U.S. Constitution. Hamilton, in particular, argued for its necessity in The Federalist No. 74.
Presidential Self-Pardons: The power of presidential self-pardons remains a topic of debate. While some legal scholars argue that a president can pardon themselves, this issue has never been definitively resolved in court.
Pardons Before Conviction: Presidents have occasionally issued pardons to individuals who were never convicted of a crime. This practice, while rare, highlights the broad discretion vested in the executive.
Posthumous Pardons: Some presidents have issued posthumous pardons to historical figures. For example, Bill Clinton posthumously pardoned Henry O. Flipper, the first African American to graduate from West Point.
Scope of Presidential Clemency: Presidents can issue pardons for federal offenses only. State crimes fall under the jurisdiction of state governors, who have their own pardon powers.
Conditional Pardons: While pardons are typically unconditional, presidents have the authority to attach conditions to them. These conditions may require the recipient to perform certain actions or meet specific criteria.
Pardons for Non-U.S. Citizens: Presidents can pardon non-U.S. citizens for federal crimes, which may have implications for their immigration status. However, it does not guarantee that they won’t face deportation.
Judicial Review of Pardons: The U.S. Supreme Court has generally upheld the president’s power to pardon. However, in the case of United States v. Klein (1871), the Court ruled that Congress could limit the effects of a presidential pardon.
Pardoning Turkeys: The tradition of the president pardoning a Thanksgiving turkey is a lighthearted and unofficial exercise of this authority. It serves as a fun and symbolic way to showcase the president’s pardon power.
The power of presidential pardon is a living legacy, reflecting the enduring tension between justice and executive authority. As we navigate the complex landscape of this constitutional prerogative, we gain insights into the evolution of governance and the intricate relationship between the past and the present.
The presidential power of pardon, rooted in ancient traditions, remains an essential facet of the American legal system. Its multifaceted history reflects the ongoing quest for a just and merciful society, shaped by centuries of legal evolution and adaptation.