J. L. BELL is a Massachusetts writer who specializes in (among other things) the start of the American Revolution in and around Boston. He is particularly interested in the experiences of children in 1765-75. He has published scholarly papers and popular articles for both children and adults. He was consultant for an episode of History Detectives, and contributed to a display at Minute Man National Historic Park.

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Wednesday, August 30, 2017

“Mr. Mason’s objection to the President’s power of pardoning”

Among George Mason’s objections to the proposed U.S. Constitution of 1787 was that it gave too much power to the President.

Specifically, Mason feared that a President would abuse the power to pardon criminals. On the back of a committee report, he wrote:
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.
At the Virginia ratifying convention that began in June 1788 Mason expounded on that danger:
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?
By then Mason’s notes had been circulated and printed, so advocates for the Constitution were prepared for his argument. Early in the ratifying debate George Nicholas responded that the threat of impeachment was crucial to ensuring government officials, including the President, didn’t abuse their powers:
In England, very few ministers have dared to bring on themselves an accusation by the representatives of the people, by pursuing means contrary to their rights and liberties. Few ministers will ever run the risk of being impeached, when they know the king cannot protect them by a pardon. This power must have much greater force in America, where the President himself is personally amenable for his mal-administration; the power of impeachment must be a sufficient check on the President’s power of pardoning before conviction. 
James Madison made the same point at more length. As the record of that state convention says:
Mr. MADISON, adverting to Mr. Mason’s objection to the President’s power of pardoning, said it would be extremely improper to vest it in the House of Representatives, and not much less so to place it in the Senate; because numerous bodies were actuated more or less by passion, and might, in the moment of vengeance, forget humanity. It was an established practice in Massachusetts for the legislature to determine in such cases. It was found, says he, that two different sessions, before each of which the question came with respect to pardoning the delinquents of the [Shays] rebellion, were governed precisely by different sentiments: the one would execute with universal vengeance, and the other would extend general mercy.

There is one security in this case to which gentlemen may not have adverted: if the President be connected, in any suspicious manner, with any person, and there be grounds to believe he will shelter him, the House of Representatives can impeach him; they can remove him if found guilty; they can suspend him when suspected, and the power will devolve on the Vice-President. Should he be suspected, also, he may likewise be suspended till he be impeached and removed, and the legislature may make a temporary appointment. This is a great security.
Madison thus declared that Congress could impeach the President not just if he pardoned someone to protect himself, but “if the President be connected, in any suspicious manner, with any person, and there be grounds to believe he will shelter him.”

Madison also suggested something the Constitution didn’t have an explicit provision for at the time: suspending an impeached President and Vice President and replacing them with “a temporary appointment” until the Senate ruled on their guilt.

1 comment:

David Kindy said...

They should have listened to Mr. Mason's arguments!