Scholarship on presidential pardoning power suggests a troubling development. In early American practice, the pardon was used to advance the public welfare. Presidents George Washington, John Adams, and James Buchanan used clemency to promote national unity after periods of insurrection. Presidents Abraham Lincoln and Andrew Johnson used the pardon in similar, if more expansive, fashion toward the close and in the aftermath of the Civil War. Other nineteenth century presidents used the pardon to attempt to end particularly divisive and punitive policies. Pardons in the long past served the general welfare. In contrast, scholars note that contemporary presidents have deviated from these paths and occasionally have used the pardon for less noble purposes.Footnote 1 The pardons of Presidents Gerald Ford, Ronald Reagan, George H. W. Bush, Bill Clinton, and Donald Trump have been criticized as serving partisan or personal objectives that fail the test of advancing the public interest. This portrait suggests two periods of clemency power: a period in which presidents were largely faithful to using clemency to advance broad national interests and a contemporary period in which presidents broke with past practices to use the pardon in self-serving ways. In effect, the impression given is that pardon power is adrift from its constitutional foundations and long-standing practice. Given this, we should not be surprised when a leading constitutional scholar includes the pardoning power in his overview of “the serious deficiencies of the present Constitution.”Footnote 2
Closer examination of presidential pardons complicates this characterization of the pardon’s development.Footnote 3 The pardons of early presidents advanced subtle partisan or personal objectives. The pardons of contemporary presidents, often labeled as partisan or personal, relied on long-established framings of the public good. For example, when Washington pardoned the Whiskey rebels, Federalist understandings of popular sovereignty were central to the public good he believed he was promoting. Adams similarly pardoned participants in Fries Rebellion to promote national unity, but the move was perceived as benefitting him politically by appealing to Pennsylvania voters before the election of 1800. When George H. W. Bush pardoned Caspar Weinberger for the role he played in covering up the Iran-Contra scandal, he referenced the practice of granting clemency at the end of a war and explicitly cited the actions of Presidents Madison, Johnson, Truman, and Carter. Contemporary presidents have certainly issued pardons that have scored partisan points and/or benefitted close associates but, largely, they have legitimated them by couching the pardons in a mix of precedent and contemporary understandings of the public good. Existing accounts of the pardon are problematic where they obscure how presidents subtly alter the justification for clemency even while framing it based on the pardons of the past.Footnote 4 Ignoring this masks both the innovations that occur from president to president and the degree to which pardons, even those that appear to break with tradition, often are grounded in the frameworks and resources created by preceding pardons.
Over the past four decades, clemency scholarship that does not emphasize a sharp break in pardon practices focuses largely on pardons in the twentieth century.Footnote 5 There has been a particular spotlight on the “controversial” pardons of presidents like Ford, Bush, and Clinton.Footnote 6 In the course of trying to make sense of pardons that seemingly were motivated either by crass partisanship or by self-interest, these articles share a feature with many other contemporary works of pardon analysis: a normative, policy assessment of whether executive clemency as it now stands serves the public good and whether reforms would enhance (or obstruct) its public purposes.Footnote 7 Pardon scholars have also attempted to understand discernable patterns in presidential clemency such as the influence of “presidential character,”Footnote 8 use of formal, public explanations for clemency,Footnote 9 and “seasonal” patterns to the issuance of clemency.Footnote 10
Instead of an approach that emphasizes a sharp break in contemporary pardon practices or that attempts to categorize it, the analysis presented here suggests that early presidents used the pardon simultaneously to achieve national purposes consistent with their understanding of the public good and ideological, partisan, and/or personal political objectives. Moreover, rather than each pardon being fully consistent, even within a particular period, each pardon represents subtle innovations from preceding pardons. The pardon power, established through Article II, Section 2 of the United States Constitution, which empowers the president to relieve an individual of actual or potential punishment for violating federal law,Footnote 11 is a “formally recognized and legitimated authority … that provides the executive with the power of initiative.”Footnote 12 The pardon, then, enables the president to pursue objectives otherwise stymied by a fractious governing coalition or entrenched oppositional interests. The pardon is, therefore, an important source of policy making exclusively held by the president.
This policy making works on multiple dimensions. Presidents use the pardon to shape ordinary politics, achieving policy victories, scoring political points, and rewarding political allies. Presidents also use the pardon to express and realize constitutional ideas, essentially translating part of the president’s constitutional vision into action. Given this article’s focus on early American presidents, the constitutional dimensions of clemency may be a natural consequence of eighteenth- and nineteenth-century American politics and political choices being expressed in constitutional terms.Footnote 13 Yet, this makes it no less consequential for the ways early presidents used the pardon as part of the ongoing struggle between Federalists and Democratic Republicans to define the constitutional order. Additionally, as detailed below, because presidential pardons create a type of precedent, clemency provides a means of engaging constitutional politics by using inherited pardon frameworks that enable presidents to advance their particular constitutional values even while claiming consistency with the past.
Such framing might suggest a president largely unfettered in the exercise of the pardoning power but this is incomplete. The pardon was, of course, conceived as a check on judicial authority, providing a means for the president to limit judicial overreach or whimsy.Footnote 14 However, in terms of the distribution of authority, this check only ran in one direction and the pardon does not have a direct institutional limitation. Alexander Hamilton, though, argued that the pardon would be limited by two features. First, impeachment would be the remedy should the president abuse or violate the public trust through the exercise of the power.Footnote 15 Second, Hamilton argued that the president would be restrained by the demands of reelection and the president’s desire to protect and promote his reputation.Footnote 16 For either check to work, the pardon itself must first be perceived as illegitimate, as impeachment and reputational damage will not occur if action is broadly perceived as legitimate. Given the centrality of legitimacy, presidents throughout history largely have sought and continue to seek means of legitimating their actions.
The search for legitimacy flows from certain features unique to the politics of clemency. The pardon’s effect is typically the undoing of a legal ruling. As Justice Field wrote in Ex Parte Garland, “when the pardon is full, it released the punishment and blots out of existence the guilt, so that in the eye of the law the offender is as innocent as if he had never committed the offence.”Footnote 17 In this way, the law itself rarely provides legitimacy for executive clemency. Such a discretionary act “against” law requires a base of support to show the action is less about presidential discretion and more about keeping faith with norms of governance. Where law falters, praxis flourishes. Reaching back in history can legitimate the pardon both substantively and procedurally. On the former, presidents can demonstrate that their pardons are consistent with long-standing principles rather than merely a function of executive prerogative. Additionally, citing the pardons of past presidents can add the reputational authority of former presidents to further enhance its legitimacy. Procedurally, presidents can establish that their pardons are consistent with traditionally evolved standards of conduct. If it can be shown that preceding presidents have engaged in similar acts, then like action from the sitting president is consistent with expected presidential behavior.
What emerges, then, from a close examination of the pardon power is that presidents across time are concerned with justifying the use of clemency. Presidents have attempted to rationalize their pardons by casting them as consistent with past pardons. Thus, presidential pardons are connected to previous iterations of the practice. Each pardon, and its justification, creates legitimating resources that future presidents can employ for their own purposes. Using these resources simultaneously enables presidents to either affirm or challenge inherited commitments. But, it also limits the degree of innovation by tying presidents to preestablished parameters.
The picture of presidential action that emerges is consistent with presidents engaged in entrepreneurial politics. Clemency is ill-defined; ambiguity in the rules of the pardon creates opportunity to innovate but the lack of rules also creates uncertainty as to how exercises of the power will affect electoral and reputational concerns. To compensate for this uncertainty, presidents typically attempt to link their actions to the past. Focus on the justification of pardons places this inquiry in the arena of language within government as the locus of change, durable or not. Hattam and Lowndes argue that attending to “the patterning of linguistic associations” is critical to locating the source of transformative change. This is not the primary purpose of this study, yet, it is nevertheless the case that engaging the politics of clemency requires attention to the effort to suture past resources to current political frames such that they appear coherent.Footnote 18 In so doing, we gain insight into yet another means presidents have at their disposal to challenge inherited commitments.
This essay proceeds by presenting high profile pardons from the first three presidencies. This is not the first study to scrutinize early American pardons,Footnote 19 but these works, as meritorious as they are, did not employ a “wider angle lens” that seeks to understand “the historically evolved relationship” between the president’s clemency authority and the wider political environment they inherit.Footnote 20 A focus on the first three presidents and their most prominent pardons are appropriate for several reasons. First, these pardons sit comfortably in the period associated with pardons exercised for high-minded purposes rather than more pragmatic and interested reasons. Second, these pardons also demonstrate how early presidents used inherited frames to achieve very different political objectives; objectives that were motivated, at least in part, by ideological, partisan, or personal concerns. Third, as pardon scholar P. S. Ruckman Jr. observes, these cases are among the most salient political events in our nation’s historyFootnote 21 so each president advanced ideological, partisan, or personal concerns even as the country’s attention was focused on the pardon. While far from comprehensive, there is sufficient evidence herein to reveal both greater complexity to the use and legitimation of clemency in early American politics and greater connection in pardon practices than previously acknowledged. In each case, we see presidents grapple with the pardon in the fullness of inherited politics and attempt to refashion the available resources to legitimate the pardon and achieve their particular goals. The picture that emerges is of presidents exercising bounded agency, connected to and constrained by the past but innovative in the way elements of politics are reconfigured for the president’s purposes.
Clemency in Early American Politics
As with many aspects of American constitutionalism, the pardoning power has deep roots in the English experience.Footnote 22 English pardoning authority was delegated to the colonial governing authority. Most colonial charters vested the pardon in the executive branch. But, following the revolution, the states reduced or eliminated executive pardoning authority. Americans had some sympathy for Montesquieu’s framing of the pardon. Montesquieu argued that pardoning violated the republican spirit because crimes are committed against the people, not the executive.Footnote 23 Yet, this reasoning was not universally held, as most states retained pardoning authority in some form.Footnote 24 And, whatever skepticism existed on executive pardon, it did not last long.
When the United States Constitution was proposed, the pardon provision in Article II, section 2 was relatively uncontroversial, although there were debates over whether the authority should be located in or shared with Congress, whether treason should be excluded as with impeachment, and whether it should apply only postconviction.Footnote 25 The pardon proved no more significant in the ratifying conventions, drawing only occasional attention in states like Maryland, New York, and North Carolina that held strong Antifederalist sentiments. Yet, despite only passing defense of the pardon, the causes given to justify the pardon are nevertheless useful in identifying its early trajectory.
The mercy function, conventionally cited as the fundamental premise of the pardon,Footnote 26 was given little attention by the pardon’s defenders. Writing in Federalist 74, Hamilton noted, almost in passing, that the “criminal code of every country partakes so much of necessary severity, that without an easy access to exceptions in favor of unfortunate guilt, justice would wear a countenance too sanguinary and cruel.”Footnote 27 James Iredell offered a similar nod to the mercy function during the North Carolina ratifying convention when he noted that “there ought to be exceptions to [the equal operation of the law]; because there may be many instances where, though a man offends against the letter of the law, yet peculiar circumstances in his case may entitle him to mercy.”Footnote 28 Hamilton and Iredell acknowledged that the pardon as playing a role in enhancing social justice. The Supreme Court also embraced this understanding in United States v. Wilson (1833), with Chief Justice John Marshall describing the pardon “an act of grace … which exempt[s] the individual on who it is bestowed from the punishment the law inflicts for a crime he has committed.”Footnote 29
The pardon could also advance executive responsibilities. Specifically, pro-clemency arguments were tied to advancing prosecutorial ends and enhancing public safety and national peace.Footnote 30 Iredell argued that clemency could aid prosecutions because “it is often necessary to convict a man by means of his accomplices” and without the pardoning power to induce cooperation “a criminal would often go unpunished.” Iredell also used this argument to justify the president’s sole authority over the pardon because it is “naturally vested in the president, because it is his duty to watch over the public safety.”Footnote 31 By raising public safety, Iredell’s thinking overlaps with one of the primary arguments in favor of adopting the proposed Constitution. In Federalist 23, Publius argued that an energetic national government was necessary for a common defense and, thus, it “ought to be clothed with all the powers requisite to complete execution of its trust.”Footnote 32 Hamilton believed the pardon was one such power essential to the nation’s peace and reasoned “in seasons 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 commonwealth.”Footnote 33 Iredell similarly argued that some citizens could be “seduced into dangerous measures against their country” but, once the tensions have cooled, might be convinced of their error. “[I]f the president possessed the power of pardoning, they probably would throw themselves on the equity of the government, and the whole body be peaceably broken up.”Footnote 34
Shay’s Rebellion played a central role in this thinking. Both Hamilton and Iredell cited the revolt in their defense of the pardon. Iredell framed the end of the conflict this way: “the insurgents … at length saw their error, and were willing to disband. Government, by a wise exercise of lenity, after having shown its power, generally granted a pardon; and the whole party were dispersed. There is now as much peace in that country as in any state in the Union.”Footnote 35 The Framers were well aware that future insurrection was possible and that, while actual or threatened military force may be necessary to quell the action, mercy could undercut the source of passion that motivated the unrest. The pardon was not just a source of mercy or remediation, it was vital to social and political reconciliation in a large, diverse republic.
Three Cases of Pardon Politics: Washington, Adams, and Jefferson
The construction laid out by Iredell and Hamilton first found purchase in the wake of the Whisky Rebellion. This episode was notable for more than its perceived upheaval and insurrection. The western frontier farmers, stretching from Georgia to Pennsylvania, who bristled under the nation’s first excise tax saw themselves as not only resisting an unconstitutional law but as the keepers of popular sovereignty and popular control of the national government.Footnote 36 The resistance in western Pennsylvania created several problems for President Washington. First, the insurrection made the new federal government appear weak and suggested that objectionable laws could be violated openly. Second, by relying on the revolutionary principles of 1776, the insurrectionists put forth a construction of the legitimacy of popular resistance that could make the enforcement of many federal laws highly problematic and undercut the authority, legitimacy, and prestige of the new national government. Third, while remedying the resistance through force was possible, the “overtures of peace” floated by the Administration would be seen as “delusive by the insurgents and the rest of the world.”Footnote 37 Fourth, many in the Administration, including Washington himself, saw this action as flowing from the passions of a minority faction.Footnote 38
Washington, then, needed a strategy that successfully enforced the excise tax, undercut the legitimacy of popular resistance as a control mechanism, created consensus on the constitutionality of the tax, and reconciled the region in revolt to the nation and its laws. Marching 13,000 troops into western Pennsylvania effectively ended the insurrection and produced greater success in enforcing the tax. Moreover, the popularity of the military campaign translated into further popular support for the tax, which in turn advanced the association of the tax with the general welfare. While the military presence ensured an immediate victory, Washington sought a more enduring one. Here, he turned to the pardon to shore up the legitimacy of the tax, further entrench a limited conception of popular action in American constitutionalism, and foster national reconciliation. Throughout the episode, Washington framed the unrest as coming from “combinations of men, who, careless of consequences … have disseminated … suspicious jealousies and accusations of the whole government.”Footnote 39 By doing so, Washington cast the unrest as constitutionally problematic, interested action, which was inconsistent with the general welfare. As such, Washington was able to link Hamiltonian economic policy—the excise tax itself—to the legitimacy of neutral legislation.Footnote 40
Contrasting the interested position of the farmers with the neutrality of the tax also suggested that active popular constitutionalism was deeply problematic. Given that “misguided or designing men … [could] poison and discontent the minds of the people against the government,” the general welfare was better served by filtering the people’s passions through republican institutions.Footnote 41 This is why, in justifying the pardon, Washington emphasized that the participants now “pay the respect to our Constitution and laws which is due from good citizens to the public authorities of the society.”Footnote 42 Washington later asserted this notion in his farewell address when he observed that “[t]he very idea of the power and right of the People to establish government presupposes the duty of every individual to obey the established government.”Footnote 43 The people were not active sovereigns, they were a chastened and limited one. Washington’s position, first in the pardon and later in his farewell address, helped reconstruct the understanding of popular sovereignty itself. As legal historian Christian Fritz observes, Washington’s “version of the sovereignty of the people helped transform a traditional constitutional statement into an assertion that sovereignty resided in the existing government.”Footnote 44
Finally, the Framers had been well aware of “the disorders that disfigured the annals of … [past] republics” and that institutions had to be created that could overcome “the tempestuous waves of sedition and party rage.”Footnote 45 Hamilton believed the Constitution provided the tools to navigate these challenges through a combination of military authority to protect the public safetyFootnote 46 and judicious use of the pardon to foster reconciliation.Footnote 47 Washington clearly embraced these positions and, on the latter, acted to promote unity through mercy. Back in 1782, Washington recommended that Congress pardon loyalists who served the British during the revolution to promote national healing.Footnote 48 He applied this same rationale to those who participated in the Whiskey Rebellion. Washington acknowledged his “sacred duty to exercise with firmness and energy the [executive] constitutional powers” but that it was “no less consistent with the public good than it is with my personal feelings to mingle in the operation of the Government every degree of moderation and tenderness which the national justice, dignity, and safety may permit.”Footnote 49 Much as Washington framed the tax as advancing the public good, so too did he frame the pardon as promoting the good of unity through forgiveness.Footnote 50
Washington’s pardon to the participants in the Whiskey Rebellion advanced the practical concern of enforcing the excise tax on distilled spirits; advanced an elite constitutionalism wherein the exercise of popular sovereignty was limited only to constitutional creation, amendment, and elections; and established clemency as a tool of statecraft wherein unity and loyalty were largely achieved.Footnote 51 Each of these moves created resources for subsequent presidents that they employed and altered when facing their own unique challenges.
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John Adams voiced some degree of contempt for Washington’s handling of the Whiskey Rebellion,Footnote 52 but when faced with notably similar circumstances, President Adams relied on Washington’s rationale for pardoning its participants. Fries’s rebellion in 1799 was spurred by a tax revolt, wide resistance in several Pennsylvania counties, and, at its core, a vision of popular sovereignty that asserted direct, popular control as central to American constitutional government.Footnote 53 The state militia quelled the unrest. John Fries, who led the revolt, along with a handful of other members of the rebellion, were convicted of treason. The pardon granted by Adams looks quite similar to Washington’s pardon of the Whiskey rebels. Yet, Adams blended motives of reconciliation with political objectives that reflected the wider partisan battles ascendant in 1800.
In issuing the pardon, Adams adopted Washington’s framework, suggesting that it was an act of mercy promulgated by the reestablishment of national peace, unity, and the supremacy of the nation’s laws.Footnote 54 As Adams often did in his private correspondence, he referred to the insurrectionists as “the ignorant, misguided, and misinformed” who were caught up in a wider political struggle. As Fries and his followers were, as such, victims, albeit “wicked and treasonable” ones,Footnote 55 their execution would only reduce confidence in the national Constitution.Footnote 56 However, once the revolt had been pacified, Adams observed that the people in those rebellious counties again acted in “submission to the laws.”Footnote 57
The conflict also raised issues about the legitimacy of active dissent among the people. Adams regularly admitted that the people were the wellspring of authority but expressed skepticism of their capacity to govern.Footnote 58 To Adams, one of the defining characteristics of American constitutionalism was the constraints placed on popular passions.Footnote 59 When called upon to play some role in the evaluation of the laws, the people needed to be structured through institutions like elections or the jury.Footnote 60 The tax revolt, then, was both a violation of the nation’s laws and a broader constitutional principle that limited popular authority to discrete and institutionally constrained moments. Other leading Federalists believed this to be central to understand the necessary consequences of resisting the federal law. Explaining the Cabinet’s unanimous position that Fries should not be pardoned, Secretary of State Thomas Pickering wrote “an opportunity is now presented in executing the justice of the law, to crush that spirit, which, if not overthrown and destroyed, may proceed in its career and overturn the government.”Footnote 61 And, Alexander Hamilton who praised Washington’s pardon of the Whiskey Rebels, wrote that the execution of Fries was necessary “[t]o destroy this persuasion, to repress, this dangerous spirit … in which there is so strong a tendency to the disorganization of Government.”Footnote 62
Yet, despite this sentiment coming from both inside and outside of his administration, Adams adopted the reasoning and framework Washington pioneered. He noted that Washington’s pardon effectively produced “tranquility in the western counties, since the insurrection there.”Footnote 63 The insurrectionists in this case were certainly guilty of interfering with the law’s enforcement, but Adams repeatedly suggested that factious antifederalist combinations led them astray. Throughout his public life, Adams distained faction and party even if he was not immune to its influences. But, he was nevertheless contemptuous of it. Adams framed the pardon as an act of mercy but one justified as saving those who had been “seduced by the arts and misrepresentations of designing men.”Footnote 64 To Adams, this was not simply a means of combating interparty conflict, it was a vehicle for claiming independence from the Hamiltonian wing of the party and asserting his will on a fractious political coalition.
Pennsylvania was arguably the key to the 1800 election. Adams had received a single electoral vote from Pennsylvania in 1796 (out of 15 total), and if he picked up another few votes in the Keystone state and held his ground in the northeast, he would almost certainly secure a second term. Fries was widely known to be a Federalist despite having been thought to have fallen under the influence of Democratic Republicans.Footnote 65 In fact, Democratic Republicans in the Pennsylvania legislature attempted to open an investigation into the sources of influence upon the uprising but the Federalist majority blocked this effort out of concerns that it might reveal that dissatisfaction came from Federalist, not Democratic Republican, ranks. Even to his own cabinet and other leading Federalists, Adams’s pardon of Fries was not an act of mercy so much as an act of political ambition.Footnote 66 As David McCullough noted in his popular biography of Adams, “much of the electorate approved, and especially in Pennsylvania.”Footnote 67 Adams increased his electoral vote in Pennsylvania to seven in 1800, although this reflects the partisan divide of the Pennsylvania Assembly more than direct voting by the electorate. But the split of the Hamiltonian wing of the Federalist Party, particularly in New York, cost Adams the victory and led to Jefferson’s election.Footnote 68
Adams did more, it turns out, than merely echo Washington’s pardon of the Whiskey Rebels. Consistent with Washington, Adams furthered the idea that the people themselves were limited in their resistance to unpopular and perhaps even unconstitutional laws.Footnote 69 Adams also again demonstrated that the new national government could show compassion in return for fidelity to its laws. Yet, Adams showed how presidents can use the pardon to engage in battles over forming the dominant national coalition and who controls it. The legacies of framing the pardon in light of national unity and restoration of the nation’s laws would continue and be closely associated with clemency for centuries. So too would the use of the pardon to achieve partisan objectives. President Jefferson employed both strategies in his effort to reconstruct the political order.
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Both Washington and Adams used the pardon to advance a constitutional and political vision, and both justified it through national unity. President Jefferson’s ideological commitments were starkly different, but his political pardons followed a similar form. Jefferson evoked forbearance in pardoning political allies while attempting to realign constitutional commitments and score points against political adversaries now entrenched in the federal judiciary. Nowhere did these interests align so perfectly as with the Alien and Sedition Acts, which raised serious concerns over not only the role of the jury in the adjudication of the nation’s laws but also whether the national government could effectively be curtailed when it exercised authority in ways that raised constitutional issues. Jefferson’s pardons of David Brown and James Thomson Callender, both convicted under the Sedition Act, thus represented a culmination of political and constitutional concerns. The pardons themselves were vehicles to (a) restore the jury in the constitutional order, (b) reconstruct the meaning of the First Amendment such that speech critical of the government was protected, (c) warn the federal judiciary that efforts to protect and invigorate Federalist commitments from the bench would be met with a vigorous response, and (d) repay Jefferson’s political debts to those Democratic Republican publishers who played a critical role in bringing the Jeffersonians to power. Thus, Jefferson’s pardons had both elements of high politics—mercy and statesmanship—and they served important conventional political goals.
The Democratic Republican concern regarding juries began under the Adams administration. The framing generation, both federalist and antifederalist, agreed on the importance of juries to a well-ordered state, even if they did not always share a common notion of why juries were important.Footnote 70 Once in power, Federalists continued to voice support for juries but Democratic Republicans questioned their commitment in practice. These practical objections took two forms: formal legislation that eliminated jury protections and informal practices that enervated their role and independence. Objections to the former came in the wake of the Alien Acts that provided the president the means to circumvent a trial when imprisoning or removing from the country an alien considered “dangerous to the peace and safety of the United States.”Footnote 71 Jefferson excoriated the Alien Acts for depriving persons of their right to a trial by jury. In so denying due process rights, the law not only violated the Fifth and Sixth Amendments but also threw carefully balanced powers of the constitutional order into disequilibrium.Footnote 72 The president now possessed judicial authority and could use it with unchecked force against noncitizens.
Even where formal legislation left juries serving their traditional role, Federalist practices enervated their ability to yield protection. Two practices drew considerable criticism from Jefferson and other Democratic Republicans. The first focused on administration of trials by Federalist judges and the ways these judges seemingly steamrolled juries into following their preference as to the disposition of a case. This was particularly prominent in the case of John Fries. The trial of Fries was overseen by Justice Samuel Chase and District Judge Richard Peters and was remarkable for the steps that Justice Chase took to influence the course of the trial. Prior to the start of the trial, Chase drafted an opinion stating his judgment on the law of treason, which he distributed to the prosecution, defense, and the jury. Chase reasoned that it was appropriate for the jury to know the judges’ opinion as to the law so long as the defense had an opportunity to argue that the judges were incorrect.Footnote 73 In effect, this meant that the burden of proof was now on Fries to prove his innocence. Not surprisingly, Fries did not meet this burden.Footnote 74
Jefferson saw the conviction as a logical consequence of Federalist constitutionalism.Footnote 75 Their conception of the supremacy of the laws reduced the presence of popular sovereignty, which meant that if the law was interested—favoring a political majority—political minorities had little recourse to oppressive laws. While juries were supposed to serve as a bulwark,Footnote 76 Federalist practices challenged these protections by enhancing judicial control over legal proceedings. The trial of James Thomson Callender cemented this concern.
Callender served as a member of the Philadelphia Aurora’s editorial board, which was an enthusiastic advocate for Democratic Republicanism. In the midst of the 1800 campaign, Callender published a book entitled The Prospect before Us, which impugned Adams repeatedly, describing him as “a professed aristocrat and … [as] faithful and serviceable to the British interest.”Footnote 77 Justice Chase was given a copy of the book by Luther Martin and, shortly thereafter, Chase presided over Callender’s indictment. Chase also presided over the trial and made a series of ruling that affected the composition of the jury and its deliberations. Callender’s lawyers sought to inquire whether any member of the jury held an opinion on the book in question, but Chase refused, allowing only an inquiry on the charge in the indictment. When one juror stated he believed the book was seditious, Chase refused to dismiss him because he had not expressed an opinion about the charge. In perhaps the moment most emblematic of the wider constitutional dispute, William Wirt, one of Callender’s attorneys, sought to argue that the Sedition Act was unconstitutional. Again, Chase blocked this effort and did so consistent with Federalist constitutionalism. Chase argued that juries could decide whether the law was violated but it was “a very different thing to determine that the statute produced is no law.”Footnote 78 Much as Washington sought to entrench the notion that popular assertions of constitutional authority were illegitimate outside of the ballot, so did Chase attack another outlet for popular constitutionalism. Juries, then, whether formally or informally, were being held in check.
The second way Democratic Republicans believed that juries were being undermined was through federal marshals. Marshals were responsible for selecting jury members and federal marshals were selected by the president. To Democratic Republican critics, this “prostitution of justice by packing juries” gave Federalists another way of controlling the jury as the Federalist-appointed marshals could appoint well-known Federalists to a jury when needed.Footnote 79 In one sedition case, Jefferson noted that the fate of the accused was “not doubted” due to the jury selection by the marshal.Footnote 80 Jefferson believed this to be so problematic that he maintained notes on individuals he believed to be Federalist jury packers.Footnote 81 Democratic Republicans also made jury reform a priority in the 6th Congress, attempting to ensure the uniform appointment of juries by lot.Footnote 82
Jefferson’s presidency and his use of the pardon would be animated by these concerns. In his inaugural address, Jefferson identified “the essential principles of government” that would animate his administration and included “freedom of the press” and “trial by juries impartially selected.”Footnote 83 The expiration of the Sedition Act and Alien Friends Act in 1800 and 1801, respectively, helped advance these principles, but more was needed particularly in light of ongoing agitation by Chase and other Federalist judges. By the time Jefferson entered the White House, almost all those convicted under the Sedition Act had served their time and/or paid their fine. But two individuals remained under the penalty of law: Callender and David Brown. Unlike Callender, Brown was not convicted for something he published but rather for inciting a crowd to raise a liberty pole that declared, “No Stamp Act, No Sedition, No Alien Bills, No Land Tax; downfall to the Tyrants of America, peace and retirement to the President, Long Live the Vice-President and the Minority.”Footnote 84 Brown, in yet another trial presided over by Justice Chase, was sentenced to 18 months imprisonment and a $450 fine.Footnote 85 Callender’s sentence had ended though he remained in jail because he was unable to pay the accompanying fine of $200. Within two weeks of his presidency, Jefferson pardoned both Brown and Callender.
Despite providing no formal expression of opinion in the pardon,Footnote 86 it fits into a wider strategy of rehabilitating the national judiciary. As noted earlier, the issue of marshals packing juries with members sympathetic to a particular party was of concern and confirmed to be the subject of proposed reforms. In his first annual message to Congress, Jefferson wrote that Congress “ought further to consider whether that is sufficiently secured in those States where they are named by a marshal depending on executive will, or designated by the court or by officers dependent on them.”Footnote 87 And, while Jefferson hoped to institutionalize a depoliticized federal judiciary, he was now in a position to appoint marshals that would act according to his vision of neutrality.
The more vexing problem to Jefferson was the assault upon the “fundamental principles of government” by Federalist judges. Jefferson certainly held this position prior to assuming office, but it was exacerbated by the Judiciary Act of 1801 and the midnight appointments. Rather than acquiescing to the law and respecting the independence of the judiciary, the Democratic Republicans repealed the Act of 1801 and passed a substitute Act in 1802, which also canceled the Supreme Court’s 1802 term. And, if that was not sufficient warning to the courts, in 1804 Congress took up articles of impeachment against Justice Chase for his actions in a series of trials including those of Fries and Callender.
Presidential scholars have noted that presidents often make disinterested service advance deeply partisan projects.Footnote 88 With this in mind, Jefferson’s pardons of Brown and Callender look less like simple acts of mercy and more like part of a sustained campaign to remove partisan spirit, at least Federalist spirit, from the judiciary and reinvigorate the independent and democratic role of the jury. By curtailing the authority of the judiciary, altering the method for jury selection, and rebuking the courts for past prosecutions, the pardons helped to marginalize the courts by restricting their authority to the fringes of a reconstructed political field.Footnote 89 And, this effort was part of a larger project of reinvigorating elements of popular sovereignty that had been suppressed under the Federalist constitutional vision. Jefferson’s pardons helped to concretize a constitutional construction of sedition that overturned the Blackstonian notion that the First Amendment prohibited only prior restraint. Federalists like Justice Chase argued that sedition was an evil subject to prohibition because it was an attack on popular sovereignty itself as it manifested in its sole legitimate outlet: the ballot. By expanding the space for popular manifestations of sovereign authority, Jefferson also helped create a constitutional regime that allowed greater space for popular dissent. Jefferson was able to diminish the courts while invigorating one aspect of popular sovereignty.
Jefferson’s efforts were consistent with the Democratic Republican party’s vision of itself as the keepers of the principles of 1776. Yet, they also scored some more basic political points. The federal judiciary was embarrassed and shown to be relatively weak. Moreover, Jefferson managed this in matters that he had personally involved himself. In the case of Callender, Jefferson wrote to Virginia Governor James Monroe that it was “essentially just and necessary that Callender should be substantially defended” and Jefferson helped raise money for the defense.Footnote 90 Jefferson may well have been principally concerned about these prosecutions, but it is also notable that the pardoned were political allies, some of whom wrote for papers financially patronized by Jefferson even as they ran their criticisms of Adams and the Federalist Party.Footnote 91 In short, whatever the higher motivations, Jefferson also repaid political allies while helping to ensure the continued support of the Democratic Republican press.
Yet, despite serving some obvious partisan objectives, it is important to understand Jefferson’s pardons as securing a particular constitutional vision, much as his Federalist predecessors had done. Jefferson did not pardon every member of the Democratic Republican press under legal jeopardy. William Duane, editor of the Aurora and close ally to Jefferson, was incarcerated for 30 days for contempt of court because he published criticism of the court’s jury selection proceedings in his citizenship trial. Jefferson explored a pardon but opted against it as the decision in the case was “perfectly right.”Footnote 92 The federal court had the power and exercised it in a reasonable fashion. Moreover, states prosecuted sedition cases throughout Jefferson’s presidency and this did not evoke a reaction. Jefferson’s concerns that animated the pardons arose out of a broader understanding of the constitutional order, including a limited conception of federal authority and checks on that authority. To Jefferson, the federal government lacked the power to criminalize sedition, as it was not provided by the Constitution and it was explicitly prohibited by the First Amendment. Juries were designed to give means for the people to check governmental authority, including when governmental authority was employed in interested fashion. Jefferson’s pardons of political sympathizers advanced these constitutional ends and, simultaneously, disrupted the inherited Federalist vision for juries and the judiciary.
Conclusion
Early uses of the presidential pardon served ideological, partisan, and even personal politics. This breaks with existing scholarly accounts of the pardon that have asserted alterations to its use but paid less attention to its consistencies. This study reveals that presidents employ the pardon as part of a broader array of executive tools employed to advance their agendas. On one level, it is unsurprising that presidents would use their authority to achieve policy objectives. However, scholars of the presidency rarely incorporate the pardon fully into their accounts of executive policy making or authority.Footnote 93 This study reveals how the first three presidents employed the pardon in ways often framed as statecraft but also layered on objectives more closely associated with ordinary politics.
Yet, the use of the pardon to achieve certain political and policy objectives was tied closely to the frameworks, concepts, and rhetoric each president inherited. Despite clemency being a largely unchecked institutional power, historically, presidents appear tied to exercising clemency power in ways that are perceived as consistent with past exercises of that power and, thereby, legitimate. Presidents most certainly behave entrepreneurially—using inherited standards and frameworks to achieve new objectives—but, so long as they are concerned with perceived legitimacy, they do so within a relatively narrow spectrum of options based on that which has been passed down to them. And when a president employs the pardon in a new way, those innovations pass to their successors. In this way, the pardon represents a practice that roughly resembles judicial decision making, employing the dual task of both interpreting historical precedent and creating a new understanding in light of that history.Footnote 94 This also suggests the utility of this approach for normative evaluations of the pardon. Those pardons that keep faith with inherited resources, even when employed in novel ways, enjoy greater legitimacy than those that break with tradition.
The pattern of executive clemency detailed herein is not limited to early presidents. Presidents as diverse as Buchanan, Lincoln, Johnson, Ford, Carter, and Bush (among others) employed the national unity framework to achieve very different political objectives. So, although this study is tightly focused on early American presidents, the analytical frame can be applied throughout American presidential history. As a vehicle for achieving certain policy goals, this lens provides a means to understand how presidents use the pardon to achieve their objectives, how they innovate to do so, and how presidents reconcile the exercise of this authority with acts of clemency in the past. Incorporating this perspective of the pardon better explains how presidential authority is simultaneously empowered and constrained.
