More Historical References

by hilzoy

Publius was off quoting Cato, so I decided to quote Publius:

“[The President] is also to be authorized to grant “reprieves and pardons for offenses against the United States, EXCEPT IN CASES OF IMPEACHMENT.” Humanity and good policy conspire to dictate, that the benign prerogative of pardoning should be as little as possible fettered or embarrassed. 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. As the sense of responsibility is always strongest, in proportion as it is undivided, it may be inferred that a single man would be most ready to attend to the force of those motives which might plead for a mitigation of the rigor of the law, and least apt to yield to considerations which were calculated to shelter a fit object of its vengeance. The reflection that the fate of a fellow-creature depended on his sole fiat, would naturally inspire scrupulousness and caution; the dread of being accused of weakness or connivance, would beget equal circumspection, though of a different kind. On the other hand, as men generally derive confidence from their numbers, they might often encourage each other in an act of obduracy, and might be less sensible to the apprehension of suspicion or censure for an injudicious or affected clemency. On these accounts, one man appears to be a more eligible dispenser of the mercy of government, than a body of men.”

Well, that would be a compelling argument if we could assume that our Presidents would always have a sense of of honor and shame. That, in itself, is a good argument for not electing people who don’t have a sense of honor.

Oops.

More below the fold.

From the records of the Constitutional Convention. I think this is George Mason:

“The President of the United States has no Constitutional Council, a thing unknown in any safe and regular government. He will therefore be unsupported by proper information and advice, and will generally be directed by minions and favorites; or he will become a tool to the Senate–or a Council of State will grow out of the principal officers of the great departments; the worst and most dangerous of all ingredients for such a Council in a free country; for they may be induced to join in any dangerous or oppressive measures, to shelter themselves, and prevent an inquiry into their own misconduct in office. (…) From this fatal defect has arisen the improper power of the Senate in the appointment of public officers, and the alarming dependence and connection between that branch of the legislature and the supreme Executive.

Hence also sprung that unnecessary and dangerous officer the Vice-President, who for want of other employment is made president of the Senate, thereby dangerously blending the executive and legislative powers, besides always giving to some one of the States an unnecessary and unjust preeminence over the others.

The President of the United States has the unrestrained power of granting pardons for treason, which may be sometimes exercised to screen from punishment those whom he had secretly instigated to commit the crime, and thereby prevent a discovery of his own guilt.”

Here’s Mason again, this time at the Virginia Ratifying Convention:

“Now, I conceive that the President ought not to have the power of pardoning, because he may frequently pardon crimes which were advised by himself. It may happen, at some future day, that he will establish a monarchy, and destroy the republic. If he has the power of granting pardons before indictment, or conviction, may he not stop inquiry and prevent detection?”

Smart man, and prescient. As was Luther Martin:

“The power given to the President of granting reprieves and pardons, was also thought extremely dangerous, and as such opposed–The President thereby has the power of pardoning those who are guilty of treason, as well as of other offences; it was said that no treason was so likely to take place as that in which the President himself might be engaged–The attempt to assume to himself powers not given by the constitution, and establish himself in regal authority; in which attempt a provision is made for him to secure from punishment the creatures of his ambition, the associates and abettors of his treasonable practices, by granting them pardons should they be defeated in their attempts to subvert the constitution.”

James Iredell in the North Carolina Ratifying Convention:

“It is the genius of a republican government that the laws should be rigidly executed, without the influence of favor or ill-will–that, when a man commits a crime, however powerful he or his friends may be, yet he should be punished for it; and, on the other hand, though he should be universally hated by his country, his real guilt alone, as to the particular charge, is to operate against him. This strict and scrupulous observance of justice is proper in all governments; but it is particularly indispensable in a republican one, because, in such a government, the law is superior to every man, and no man is superior to another. But, though this general principle be unquestionable, surely there is no gentleman in the committee who is not aware that there ought to be exceptions to it; 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. It is impossible for any general law to foresee and provide for all possible cases that may arise; and therefore an inflexible adherence to it, in every instance, might frequently be the cause of very great injustice. For this reason, such a power ought to exist somewhere; and where could it be more properly vested, than in a man who had received such strong proofs of his possessing the highest confidence of the people?”

At the moment, I can think of all kinds of answers to that last question.

Finally, just because I like him, Cesare Beccaria:

“As punishments become more mild, clemency and pardon are less necessary. Happy the nation in which they will be considered as dangerous. Clemency, which has often been deemed a sufficient substitute for every other virtue in sovereigns, should be excluded in a perfect legislation, where punishments are mild, and the proceedings in criminal cases regular and expeditious. This truth will seem cruel to those who live in countries where, from the absurdity of the laws and the severity of punishments, pardons and the clemency of the prince are necessary. It is indeed one of the noblest prerogatives of the throne, but, at the same time, a tacit disapprobation of the laws. Clemency is a virtue which belongs to the legislator, and not to the executor of the laws; a virtue which ought to shine in the code, and not in private judgment. To shew mankind that crimes are sometimes pardoned, and that punishment is not the necessary consequence, is to nourish the flattering hope of impunity, and is the cause of their considering every punishment inflicted as an act of injustice and oppression. The prince in pardoning gives up the public security in favour of an individual, and, by his ill-judged benevolence, proclaims a public act of impunity. Let, then, the executors of the laws be inexorable, but let the legislator be tender, indulgent, and humane. He is a wise architect who erects his edifice on the foundation of self-love, and contrives that the interest of the public shall be the interest of each individual, who is not obliged, by particular laws and irregular proceedings, to separate the public good from that of individuals, and erect the image of public felicity on the basis of fear and distrust; but, like a wise philosopher, he will permit his brethren to enjoy in quiet that small portion of happiness, which the immense system, established by the first cause, permits them to taste on this earth, which is but a point in the universe.”

These quotes have been brought to you by my thinking that it would not be a good idea for me to express my anger directly just now.