ANSWER.

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.(73) 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?(74)

Pamphlets on the Constitution of the United States Published During Its Discussion by the People 1787-1788 · 第 95 / 257 题