In December 1795, before an audience of senators and congressmen, George Washington sought to justify an extraordinary act of mercy to round out his seventh, and penultimate, annual address to Congress.

Looking back with satisfaction on the resolution of the ‘Whisky Rebellion’, a violent insurgency against the collection of excise taxes on Pennsylvania’s southern frontier, Washington declared that those who had been ‘misled’ into rebellion had been brought back into the fold of the constitution like so many prodigal sons, returning to the civic obedience expected of good citizens. ‘These circumstances’, he continued:

[H]ave induced me to pardon generally the offenders here referred to, and to extend forgiveness to those who had been adjudged to capital punishment. For though I shall always think it a sacred duty to exercise with firmness and energy the constitutional powers with which I am vested, yet it appears to me no less consistent with the public good than it is with my personal feelings to mingle in the operations of Government every degree of moderation and tenderness which the national justice, dignity, and safety may permit.

Although issued in the most general terms, Washington’s declaration referred, in fact, to a specific act of clemency issued on 2 November that year towards two men, John Mitchell and Philip Weigel, the only two of the one hundred and fifty men arrested for participation in the revolt to be found guilty, both of whom had been sentenced to death.

It was the first exercise of the expansive power of presidential pardons in the young republic’s history. The decision, however, was not without controversy. Washington’s secretary of the treasury and closest confidant, Alexander Hamilton had urged the president to show no mercy to the two men, writing that ‘Moderation enough has been shewn: ‘tis time to assume a different tone,’ lest ‘[t]he well disposed part of the community will begin to think the Executive wanting in decision and vigour.’

In issuing the pardon over Hamilton’s frustrated objections at the clemency towards those who had resisted and killed one of his excise officers, Washington set an important precedent. As he recognised, the presidential pardon, at its best, could be a tool for healing a divided nation, rising above the laws to mend a frayed civil peace.

But its use has not always been so noble, and it has attracted no end of controversy. In 1873 Andrew Johnson’s decision to issue a general pardon and amnesty to large numbers of Confederate soldiers and officials was condemned by Thomas Wentworth Higginson as ‘the pardon of every rebel for the crime of rebellion, and the utter refusal to pardon a single black loyalist for the ‘crime’ of being black. Just over a century later, Gerald Ford’s 1974 decision to pardon his predecessor, Richard Nixon, who had appointed him Vice President and resigned in his favour earlier that year, was attacked in the New York Times as a denial of justice and fair procedure.

So too have more mundane pardons attracted sharp criticism, particularly insofar as presidents have pardoned relatives for ordinary criminal actions, a controversial use case of which President Biden’s decision to issue an ‘unconditional’ blanket pardon to his son Hunter is only the latest example. Similar controversy attended President Clinton’s pardon of his brother Roger and President Trump’s last-minute pardon of his eldest daughter Ivanka’s father-in-law Charles Kushner in 2021.

Even more remarkably, the Biden White House is now, apparently, discussing the possibility of issuing ‘pre-emptive pardons’ to Adam Schiff, Liz Cheney, and Anthony Fauci, among others, in order to prevent potential recriminations and politically motivated trials by the incoming Trump Administration. Though a logical response to Trump’s threatened politicisation of the Justice Department and FBI, such a step would be entirely unprecedented in American history.

In some ways, this near absolute and entirely arbitrary power of clemency sits oddly in the American republican tradition. The pardon power, inherited from the British monarchy, seems, after all, to explicitly deny the idea that the United States is an ‘empire of laws’, as so many of the founders loved to call it, in which all are equally subject to a neutral and impartial master. And although the founders did not give the president an unlimited pardon –since the power applies only to federal crimes and cannot be used to circumvent impeachment proceedings or annul their conclusions – in the domain of federal criminality, the power certainly places the president above the law. In that sense, the pardon is a power more redolent of monarchy, and the ancient notion of the king who wields both sword and scales, than it is of the limited powers of a first magistrate.

In fact, these very problems troubled the founding fathers greatly. As the historian Eric Nelson argued in his 2014 book The Royalist Revolution: Monarchy and the American Founding, the extent to which the president of the United States ought to inherit the arbitrarily exercised ‘prerogative powers’ of the British monarchy divided those strict republicans amongst the founders and those willing to countenance elements of arbitrary power for the health of the constitution.

For this reason, the men who wrote the United States Constitution were circumspect about the nature of the presidential pardon. When the idea was first proposed, remarkably enough by that great opponent of its first use, Alexander Hamilton, it contained an exemption for cases of treason. Although this was ultimately rejected, it was discussed over and over by the drafters of the Constitution, some of whom feared, as Edmund Randolph, a Virginian delegate put it, that such a power could be used by a president seeking to undermine the constitution, since a future president ‘may himself be guilty, and… the Traytors may be his own instruments.’ Others proposed that pardons for treason should be allowed only with senatorial consent. In rejecting these limitations, their opponents charged that in such cases even the usual supporters of the president would, of course, vote for presidential impeachment immediately, rendering such provisions unnecessary.

Other delegates took matters further. Roger Sherman of Connecticut, for example, proposed making all pardons conditional and provisional, dependent on later senate ratification, a notion rejected 8-1 by the state delegations. If the choice was between a convoluted process requiring congressional agreement which was unlikely to yield genuine mercy and arbitrary presidential power, the delegates argued, arbitrary power was the order of the day.

In adopting and maintaining such a power, the United States remains a strange outlier amongst contemporary democracies. Although many states formally reserve the right of pardon to their head of state, its discretionary use, as in the United States is exceptionally rare in modern democratic states.

Indeed, despite its British heritage, the royal pardon has long since ceased to mirror the unconstrained prerogative granted to the President of the United States. Fears about the abuse of pardons by the monarch already abounded in the buildup to the Civil War in the 17^th century, particularly around the trial of the King’s lieutenant, Thomas Wentworth, during which Parliament passed a controversial Bill of Attainder in order to prevent Charles’ grant of royal clemency. By the time of the American Revolution, the power had fallen so far into disuse and disrepute that Robert Peel was willing to resign rather than allow George IV to unilaterally issue a royal pardon.

In fact, since the 18^th century, the idea of pardons or executive clemency has generally been distrusted by legal reformers. Better, Cesare Beccaria argued in his 1762 work Of Crimes and Punishments, to ‘Let the laws… be inexorable, and inexorable their executors in particular cases. As punishments become more mild, clemency and pardon becomes less necessary. Happy the nation in which they might some day be considered pernicious.’

Nor was Beccaria alone; the same view was voiced, for example, by Immanuel Kant and by the French revolutionaries of 1789. Arbitrary clemency, they contended, was a mark of an undeveloped system of justice, and though it might be better to be pardoned than condemned, that inflexible laws left such power to arbitrary discretion undermined the regularity of the laws.

Yet such a view supposes that the laws can be perfected to such a state that unjust convictions will become impossible, or exceptions to otherwise just rules occasionally arise and demand forms of leeway the need for which no legislator can anticipate.

Indeed, as Hamilton, defending the controversial grant of the pardon to the presidency in the constitution, observed in Federalist No.74, despite all its potential inconveniences, the pardon power introduced an element of mercy otherwise absent from an unfeeling system of laws. ‘Humanity and good policy conspire’, Hamilton declared, ‘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 favour of unfortunate guilt, justice would wear a countenance too sanguinary and cruel.’

The pardon power, Hamilton continued, offered more than just the possibility for true justice to prevail where the law could not take account of circumstance or moral facts beyond the scope of judicial proceedings. It also served the course of civil peace. ‘[I]n seasons of insurrection or rebellion,’ Hamilton argued, ‘there are often critical moments, when a well-timed offer of pardon to the insurgents or rebels may restore the tranquillity of the commonwealth’ – though in the decade after the ratification debate, he had, apparently, forgotten his own prudent lesson.

So, a critical dilemma remains; how to integrate mercy into the political order, as both a matter of justice and prudence, without granting to some body or other an unfettered prerogative? No legislator can establish in advance a rule for when a pardon has been used to legitimately prevent or arrest injustice, and since such matters are always in the eye of the beholder, they can be decided only by individual or collective discretion. And though some reform to bind the exercise of the executive pardon may seem sorely tempting, it is worth pondering what will be lost in doing so and leaving all cases at the mercy of blind, unfeeling, justice.