President, Politics and Pardons: Washington's Original (Mis?)Use of the Pardon Power
8 Wake Forest Journal of Law & Policy 259 (2018)
60 Pages Posted: 6 Aug 2018
Date Written: August 1, 2017
Recent political events raise an issue that usually remains dormant until a President is about to leave office, namely pardons. Many political watchers fear President Trump’s pardon authority, perhaps for good reason. However, their analysis of the pardon power is normative. They argue that there are proper uses for the pardon power and Trump’s usage and potential usage are not it. Reasonable people can disagree about the wisdom of pardons and the circumstances when they should be granted. Critiques of the pardon power have become commonplace when Presidents inevitably pardon people in the waning days of their Administration for apparent political reasons. This article unearths the origins of Presidential pardons. It asks and answers why President George Washington pardoned the people he pardoned. The article begins by examining recent scholarship on pardons and their use. Then it turns to Washington’s Administration by sketching the origins of federal courts in the United States. The paper’s heart is its detailed look at whom Washington pardoned and whom he did not. Washington’s first pardons had symbolic value and he attempted to choose carefully but circumstances necessitated the first pardon. Most of Washington’s pardons went to merchants who evaded the customs laws in some manner thus advancing Washington’s goal to promote commerce. Another significant number went to people involved in the Whiskey Rebellion. By pardoning so many participants, Washington hoped to end the resistance and reunite the nation. Yet his Whiskey Rebellion pardons also were necessary for practical reasons. Finally, Washington used pardons as part of his foreign policy, especially when dealing with the war between France and Great Britain so that the United States remained neutral. Although mercy may have factored into the decision-making, the article concludes that Washington used his pardon power when it benefited the government.
Keywords: Pardon Power; Executive Power; Legal History; Criminal Procedure; Early American Republic; Criminal Justice History
JEL Classification: K14, K42
Suggested Citation: Suggested Citation