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The Politics of Clemency in the Early American Presidency: Power Inherited, Power Refashioned

Published online by Cambridge University Press:  10 February 2022

BRADLEY D. HAYS Open the ORCID record for BRADLEY D. HAYS [Opens in a new window]
BRADLEY D. HAYS*
Affiliation:
Union College, USA
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Abstract

This article presents case studies of pardons in the presidencies of Washington, Adams, and Jefferson. In doing so, the article moves away from the idea in existing scholarship that pardons of the past were largely noble acts of statecraft, untouched by ideological, partisan, or personal political motivations. Instead, it develops an account of how and why these pardons should be understood as both enabling presidents to achieve certain political objectives and, simultaneously, operating in an inherited environment in which presidents used existing resources to legitimate their pardons. In so doing, presidents refashioned those inherited resources and, thereby, created new resources for future presidents. The picture that emerges is of pardons as both sources of political innovation and political constraint.

Keywords

Clemency in the early U.S. republicpardon policypardon politicsU.S. Constitution Article II, Section 2Whiskey RebellionAlien and Sedition Actsearly American presidency
Type
Article
Information
Journal of Policy History , Volume 34 , Issue 1 , January 2022 , pp. 91 - 115
Copyright
© Cambridge University Press 2022

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Footnotes

I am indebted to Austin Sarat and Cliff Brown who both read an early draft of this manuscript and made important suggestions in developing its central ideas. Thanks to Paul Frymer who provided thoughtful and encouraging advice, which led to the article’s current form. Special thanks to the anonymous reviewers at the Journal of Policy History for their excellent insights and advice. The manuscript is stronger because of their counsel.

References

NOTES

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29. United States v. Wilson, 32 U.S. 150 (1833), 150.

30. The Supreme Court acknowledged this role for the pardon in Biddle v. Perovich (1827). In that case, Justice Oliver Wendell Holmes wrote that the pardon “is not a private act of grace … it is a part of the Constitutional scheme. When granted, it is the determination of the ultimate authority that the public welfare will be better served by inflicting less than what the judgment fixed.” 274 U.S. 480, 486.

31. The Debates, Volume 4, 110.

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38. This became something of an obsession to Washington. See George Washington to Burgess Ball, September 25, 1794, National Archives, accessed April 19, 2020, https://founders.archives.gov/documents/Washington/05-16-02-0492.

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44. Fritz, American Sovereigns, 187.

45. Hamilton, “Federalist 9,” The Federalist Papers, 40.

46. Hamilton, “Federalist 23,” The Federalist Papers, 120–25.

47. Hamilton, “Federalist 74,” The Federalist Papers, 415–17.

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50. Scholars argue that Washington’s framing of the pardon established the tradition “to use the power of executive clemency to promote justice.” See Pederson, William D. and Williams, Frank J., “America’s Presidential Triumvirate: Quantitative Measures of Character,” in George Washington: Foundation of Presidential Leadership and Character, eds. Rozell, Mark J., Fishman, Ethan, and Pederson, William D. (Westport, CT: Praeger, 2001), 156 Google Scholar.

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54. Adams opened the pardon as follows: “Whereas the late wicked and treasonable insurrection … having been speedily suppressed without any of the calamities usually attending rebellion; whereupon peace, order, and submission to the laws of the United States were restored in the aforesaid counties, and the ignorant, misguided, and misinformed in the counties have returned to a proper sense of their duty, whereby it is become unnecessary for the public good that any future prosecutions should be commenced or carried on against any person or persons by reason of their being concerned in the said insurrection.” John Adams, “Proclamation—Granting Pardon to Certain Persons Engaged in Insurrection against the United States in the Counties of Northampton, Montgomery, and Bucks, in the State of Pennsylvania,” May 21, 1800, The American Presidency Project, accessed April 15, 2020, https://www.presidency.ucsb.edu/documents/proclamation-granting-pardon-certain-persons-engaged-insurrection-against-the-united.

55. Adams, “Proclamation,” The American Presidency Project.

56. Adams to the Heads of Departments, May 20, 1800, in The Works of John Adams, Volume 9, ed. Charles Francis Adams (Boston: Little, Brown and Company, 1854), accessed April 15, 2020, http://oll.libertyfund.org/titles/adams-the-works-of-john-adams-vol-9-letters-and-state-papers-1799-1811.

57. Adams, “Proclamation,” The American Presidency Project.

58. Fritz, American Sovereigns, 40.

59. See Dippel, Horst, “The Changing Idea of Popular Sovereignty in Early American Constitutionalism: Breaking away from European Patterns,” Journal of the Early Republic 16, no. 1 (Spring 1996): 21–45 CrossRefGoogle Scholar, 31.

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63. Adams to the Heads of Departments, May 20, 1800, in The Works of John Adams, Volume 9.

64. John Adams, “Third Annual Address to Congress,” December 3, 1799, The American Presidency Project, accessed April 20, 2020, https://www.presidency.ucsb.edu/documents/third-annual-address-congress.

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67. David McCullough, John Adams (New York: Simon & Schuster, 2002), 370. Historian Paul Douglas Newman also notes that “Adams had good reason to believe his own pardons would have an ameliorating effect on the electorate, after all, the people had elected him after Washington’s pardons in 1795.” Fries’s Rebellion, 195.

68. In 1796, Adams won all of New York’s electors. In 1800, he won none of them.

69. Adams went so far as to pardon David Bradford, the only remaining participant in the Whiskey Rebellion not pardoned by President Washington. Notably, Adams issued the pardon for Bradford roughly one month before the start of John Fries’s trial. The signaling effect was not lost on Federalists who desired swift punishment as a deterrent against future uprisings. See Ridgway, Whitman H., “Fries in the Federalist Imagination: A Crisis of Republican Society,” Pennsylvania History: A Journal of Mid-Atlantic Studies 67, no. 1 (Winter 2000): 141–60,Google Scholar 150.

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71. An Act Respecting Enemy Aliens, 1 Stat. 577 (1798).

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76. Hamilton argued as much in The Federalist: “The friends and adversaries of the plan of the convention, if they agree in nothing else, concur at least in the value they set upon the trial by jury; or if there is any difference between them it consists in this: the former regard it as a valuable safeguard to liberty; the latter represent it as the very palladium of free government.” Hamilton, “Federalist 83,” The Federalist Papers, 467.

77. As quoted in James Morton Smith, “Sedition in the Old Dominion: James T. Callender and The Prospect before Us,” The Journal of Southern History 20, (May 1954), 157–82, 176.

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81. Jefferson, “Notes on New York Patronage,” Papers, Volume 33, 11.

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83. Thomas Jefferson, “Inaugural Address,” March 4, 1801, The American Presidency Project, accessed April 19, 2020, https://www.presidency.ucsb.edu/documents/inaugural-address-19.

84. As quoted in “Footnote to Pardon for David Brown,” in The Papers of Thomas Jefferson, Volume 33, 17 February to 30 April 1801, ed. Barbara B. Oberg (Princeton, NJ: Princeton University Press, 2006), 252.

85. Miller, John C., Crisis and Freedom: The Alien and Sedition Acts (Boston: Little, Brown, and Company 1951), 119 Google Scholar. In Jefferson’s pardon of Brown, he cites the fine amount as $400. See Jefferson, “Pardon for Brown,” Papers, Volume 33, 251.

86. Not only had Jefferson espoused his opinion on the Alien and Sedition Acts in personal letters and in his draft of the Kentucky Resolution of 1798; he also drafted a bill as president that provided relief to those who “suffered, prosecutions, fines, & imprisonments” under the Sedition Act. See Miller, Crisis and Freedom, 258. Jefferson may have refrained from expressing his opinion due to Madison’s advice that giving reasons may open up pardons to greater criticism. James Madison to Thomas Jefferson, 20 June, 1801, in The Papers of Thomas Jefferson, Volume 34, 1 May to 31 July 1801, ed. Barbara B. Oberg (Princeton, NJ: Princeton University Press, 2006), 396.

87. Thomas Jefferson, “First Annual Message,” December 8, 1801, The American Presidency Project, accessed April 19, 2020, https://www.presidency.ucsb.edu/documents/first-annual-message.

88. Skowronek, The Politics Presidents Make, 70.

89. Skowronek, The Politics Presidents Make, 76–77.

90. Dunn, Susan, Jefferson’s Second Revolution: The Election Crisis of 1800 and the Triumph of Republicanism (New York: Houghton Mifflin Harcourt, 2004)Google Scholar; on Jefferson’s personal contribution to Callender, see Miller, Crisis in Freedom, 220.

91. Thomas Jefferson to James Monroe, July 17, 1802, Library of Congress, Washington, DC, accessed April 19, 2020, http://www.loc.gov/resource/mtj1.026_0806_0806.

92. Robert R. Livingston to Thomas Jefferson, Papers, Volume 34, 215.

93. For example, the following works do not contain any extensive treatment of the pardon as part of executive power or policy making. Calabresi, Steven G. and Yoo, Christopher S., The Unitary Executive: Presidential Power from Washington to Bush (New Haven, CT: Yale University Press, 2008)CrossRefGoogle Scholar; Howell, William G. with Brent, David Milton, Thinking about the Presidency: The Primary of Power (Princeton, NJ: Princeton University Press, 2013)CrossRefGoogle Scholar; Howell, William G., Power without Persuasion: The Politics of Direct Presidential Action (Princeton, NJ: Princeton University Press, 2003)CrossRefGoogle Scholar; Mansfield, Harvey, Taming the Prince: The Ambivalence of Modern Executive Power (New York: Free Press, 1989)Google Scholar; Neustadt, Richard E., Presidential Power and the Modern Presidents: The Politics of Leadership from Roosevelt to Reagan (New York: Free Press, 1990)Google Scholar; Schlesinger, Arthur M., The Imperial Presidency (Boston: Houghton Mifflin, 1973)Google Scholar; Skowronek, The Politics Presidents Make; Tulis, Jeffrey K., The Rhetorical Presidency (Princeton, NJ: Princeton University Press, 1987)Google Scholar. Notably, pardon scholars have begun to explore the pardon as a policy-making tool by exploring President Obama’s commutations of drug offenses. See Ruckman, P. S. Jr. “The Obama Administration: Breaking Records in a Broken Clemency System,” Federal Sentencing Reporter 29, no. 2–3 (December 2016–February 2017), 87–90 CrossRefGoogle Scholar; Love, Margaret Colgate, “Obama’s Clemency Legacy: An Assessment,” Federal Sentencing Reporter 29, no. 5 (June 2017), 271–77CrossRefGoogle Scholar.

94. See Ronald Dworkin’s analogy of judicial work to a chain novel. Law’s Empire (Cambridge, MA: Belknap Press of Harvard University Press, 1986), 229.