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)