Pardon Me: The origins and issues with Presidential pardon power
Updated: Jan 9, 2019
“How long a time lies in one word!
Four lagging winters and four wanton springs
End in a word – such is the breath of kings.”
- Bolingbroke, Richard II
John André was an Englishman, sort of. His father was a merchant from Switzerland and his mother was from Paris. They had been Huguenots, reformed Protestants, living in London when he was born in 1750. Educated and brought up in Geneva André is hardly the image that comes to mind when one thinks of a British officer, but that is just what he became. After his father died André bought himself a commission in the British Army and was headed to Quebec in 1775 where he was taken prisoner shortly afterwards by the recently rebelling American colonists. As André was held prisoner until the later half of 1776, a colonial spy named Nathan Hale was hanged on what is now 66th and 3rd in Manhattan. It is more than likely that André never heard of Hale’s hanging or of the man himself, but he would come to lament him. Just like all of us John André was unaware of the profound and far reaching effects that seemingly unremarkable events can have on our lives at the present moment and in our future. André was an agreeable and well-behaved prisoner and having charmed his captors into a prisoner exchange, André joined the staff of Sir Henry Clinton, becoming his friend and confidant. In just three years André had risen to the position of adjacent general, earning his position solely on merit rather than blood, a rare thing among British officers. “I have every day more reason to be pleased with my situation,” he wrote to his sister.
When the Americans moved out of Philadelphia in the fall of 1777 the British moved in. As the cold rolled through and the snow began to fall John André warmed his feet at the house of Benjamin Franklin where he took up residence during the occupation. While what was left of General George Washington’s colonial army starved and froze in the Pennsylvania wilderness at Valley Forge, the British army in Philadelphia enjoyed a lively social scene of dances and parties. Here André thrived. At social events he was cordial and polite. He spoke Italian, French, and German and all manner of people enjoyed his buoyant and distinguished company, charming everyone he met. Being a prolific writer and artist, and given his duties were light during his stay, André used his time for acting, directing and painting the Philadelphia landscape. He even created costumes and sets for pageants and plays. He wrote poetry and music, even comedy. André was social and intellectual, witty and noble according to his contemporaries. He was a multi-talented gentleman who contributed to the bustling American cultural center that was Philadelphia at the time. Which would explain why he attracted the attention of Miss Peggy Shippen, the daughter of Philadelphia lawyer and nonpartisan Edward Shippen, who became a subject of one of André’s sketches. In André’s drawing, Miss Shippen’s wig is large, almost comically so retrospectively, and is dressed in a ruffled ball gown. She smiles shyly, almost flirtatiously as she glances at the viewer as a gestural invitation. It is not too much to assume the two were close.
André’s talents unfortunately also made him wholly unsuited for a job in military intelligence but in 1779, Sir Henry Clinton promoted John André, now a major, to lead intelligence officer. He was to take over the already existing spy networks in place however he was “too little accustomed to duplicity,” as he admitted. Although André got lucky, having stumbled into an espionage gold mine when he came in contact with the disgruntled and financially troubled American General Benedict Arnold. Arnold had recently moved into Philadelphia and was put in charge of the administrative duties of the city. Like André, Arnold indulged himself in the pleasures of the American capital, including the company of Peggy Shippen who he would marry in the spring of 1779. However Arnold felt that his superiors had dealt him a bad hand and having been passed over time and again for a promotion, a battlefield command, and a raise the wounded former war hero began to question his loyalties. With a little nudging from André, and possibly Peggy Shippen, Benedict Arnold decided that his patriotism had a price.
When Arnold eventually took control of West Point located on the Hudson River in the summer of 1780 a plan was devised for the American General to hand over the fort and his commander-in-chief, General George Washington who would be making an impromptu visit that fall. After meeting secretly with Arnold at a nearby safe house in upstate New York, André was headed back down to Manhattan under the transparent alias James Anderson, dressed in civilian clothing with military intelligence regarding the fort at West Point when he was stopped by three men who were not in uniform. Misjudging the situation, he immediately revealed himself assuming the men had loyalist sympathies. When they instead declared themselves to be patriots André presented a letter from Arnold and attempted to pass under the guise of diplomacy. However this was one scenario John André was unable to charm his way out of. It turned out the three men weren’t interested in taking André prisoner or in his rank or allegiance. But they were very interested in his London made boots, which once removed revealed to the plans from West Point hidden inside them. This too was of little interest to the men however and they offered to let André go if he gave them one hundred guineas, his horse, and his watch. He agreed and was ready to go on his way until one of the men suggested they had nothing to lose by taking him in anyway. André was taken to nearby North Castle, the closest American outpost, and held prisoner while Benedict Arnold scurried off to the nearest British outpost to make his escape, his plan foiled.
It’s hard to know what would have happened if American regulars or officers had captured André rather than highwaymen. Most likely they would have been puzzled and surprised by their encounter but they may also have been suspicious as Major Benjamin Tallmadge was when he returned from patrol. He was the head of American intelligence and confidant to General Washington stationed nearby. When he returned he agreed to escort André to Tappan where he would be far away from any British rescue efforts. Tallmadge may have figured he could pick André's brain on recent developments of British intelligence. He must also have been curious. Here was his chance to meet his British counterpart. At the beginning of their journey Tallmadge’s sympathy for André must have had its limits. A little less than a decade earlier, Benjamin Tallmadge had been a classmate and debate partner of Nathan Hale's at Yale College. According to his own account he poignantly mentioned the capture of his friend. “Do you remember the sequel of this story[?]” Tallmadge asked André. “’Yes,’ said Andre; ‘he [Hale] was hanged as a spy; but you surely do not consider his case and mine alike.’” To which Tallmadge replied, “Precisely similar and similar will be your fate!” However as the two spymasters rode to Tappan André must have worked his charms because by the end the two young majors got along handsomely. “[I] never saw a man whose fate I foresaw, whom I so sincerely pitied. He is a young fellow of great accomplishments… He has unbosomed his heart to me, and indeed, let me know almost every motive of his actions so fully since he came out on his late missions and has endeared himself to me exceedingly,” Tallmadge would later write. Just as André had won the hearts of those in Philadelphia he eventually won the hearts and friendship of his captors, specifically a young Lieutenant Colonel named Alexander Hamilton who was in Washington’s party at West Point and had André's plan succeeded, would have almost certainly been captured alongside his commander. André represented a gentlemanly code of honor the two young men aspired to. “[He has] a peculiar elegance of mind and manners, and the advantage of a pleasing person,” wrote Hamilton. The same qualities that made him a terrible spy made him an admirable person.
Despite what Tallmadge may have thought, the capture of André was different from that of his dear friend Nathan Hale. André was the adjutant general to the British Army; he was an officer and the lead spymaster. The Americans could not just hang him without suffering political ramifications. However given that André was caught behind enemy lines under an assumed name, with military intelligence and in civilian clothing, things were not looking good for him and he knew it. As he lay captive, Sir Henry Clinton lobbied passionately for his release. André wrote to his friend and superior assuring him that he had received “the greatest attention from His Excellency George Washington, and from every person under whose charge I happen to be placed.” Clinton privately railed at Washington for his handling of the André affair calling it “premeditated murder” which will have “dreadful consequences.” Among those who pleaded for mercy towards André was Alexander Hamilton who argued in practical terms. He believed the adjutant general had originally asked to meet on neutral ground but was lured into American territory by Arnold and should therefore be treated as an officer and not a spy. It made no matter to Washington. He had his Army to consider, and despite André’s position, rank or personality he had little choice. The memory of Nathan Hale was still very much alive in the minds and hearts of many Continental soldiers. They wanted blood, and releasing someone who was captured under similar circumstances as their tragic hero would not have gone over well in the already mutinous American camp. There were similar issues on the British end. Despite Clinton’s objections he was still unwilling to trade Arnold for his friend André. No matter how much he valued André in his heart, in the world of military politics a general was not worth the price of a lower officer and so he too was left with little choice. With the Americans unable to get there hands on their former comrade general Arnold, someone had to be punished, and André had to die.
At his trial he was quickly found guilty of espionage and the death sentence was recommended. Despite objections from Hamilton, Washington certified the board’s decision. André, in an action fitting his personality, accepted his fate calmly. He was caught red handed and he must have known his rank and personal connection to Clinton only delayed a violent and prolonged death. He did make one request: to be executed by a firing squad. “Buoyed above the terror of death,” he wrote to Washington. “By the consciousness of life devoted to honorable pursuits, and stained with no action that can give me remorse, I trust that request I make to your Excellency at this serious period, and which is to soften my last moments, will not be rejected.” Death by firing squad was one befitting that of a solider. It was an honorable thing whereas death by hanging was not only painful but long and humiliating. Hamilton thought this was a reasonable request considering he was still of the mind that André be treated as an officer and not a spy, but General Washington, who was originally inclined to oblige André, did not respond to the request. He knew, as did everyone else, that if André had succeeded it would have ruined the entire American revolutionary cause. He was pressured to make an example and André was to be given a death instead befitting a spy: a public hanging. Anything less would have been seen as being too soft. André however was left ignorant of this alteration. Alexander Hamilton wrote to his later wife that Washington had decided, “to evade an answer, to spare him the sensations which a certain knowledge of the intended mode would inflict” upon André.
On the morning of October 1st, confined to a tavern in Tappan, with a steady hand and without a mirror, André drew a self-portrait in pen and ink. Sitting poised, calm and confident, cross legged at a around table André demonstrates how he wished to be seen at the end but also reveals three centuries later more about the man than any of his attributed final words. Before he was led up to the hilltop to be killed, André presented his portrait to one of his guards as a keepsake. The next day the Major was led to the gallows, clean shaven, dressed in full regimentals sent up from New York City as requested. Upon seeing the noose he was “startled, and enquired with some emotion whether he was not to be shot,” recalled Tallmadge. Tallmadge told him no. By all accounts André accepted his fate bravely, climbing unaided onto the coffin that lay in a wagon below the tree branch that bore the noose, he tightened the rope around his own neck and put his handkerchief over his eyes. In front of him was a crowd of two thousand. When asked if he had any last words he removed the blind fold and supposedly said “All I request of you, gentlemen, is that you will bear witness to the world that I die like a brave man.” Many in the crowd were weeping, including Tallmadge who was forced to turn away. The executioner gave the signal. The cart below André pulled away and the momentum gave him a “great swing” most likely crushing his trachea cutting off oxygen from the lungs. The noose pulled against the skin of his neck tightening around the carotid arteries carrying blood to the brain bursting the capillaries in his face and eyes. His feet jerked and spun. Many noticed his handsome face was now black and mortified and his neck was red, swollen and distorted. After a few minutes the major stopped moving. “The circumstances [of André] was taken in justified it and policy required a sacrifice,” wrote Washington more than a week later. “But as he was more unfortunate than criminal in the affair, and as there was much in his character to interest, while we yielded to the necessity of rigor, we could not but lament it.” For Washington it was over and for Tallmadge he thought for now it was better to forget him. “Enough of poor André,” he wrote. “Who tho’ he dies lamented, falls justly.”
Amongst those who could not so easily forget the sight of John André writhing and dancing on the gibbet was Hamilton. Although Washington’s young aide-de-camp had fought hard for better treatment for André he did not consider him innocent. “The death of André could not have been dispensed with,” he wrote. By the standards of 18th century military courts, John André was guilty of the crimes he was accused of, and even he was aware of it, considering his concern over the mode of his execution outweighed his concern over the verdict of the court. There was no doubt over the validity of the case or whether or not André had faced justice. However Hamilton felt André was a victim “of rigid justice.” For him it wasn’t a miscarriage of justice but a miscarriage of mercy. It was also a matter of honor. André was an honorable man and should have been treated as such. For the younger members of Washington’s entourage André represented an ideal, an example to be followed and respected. The fact that his final request was denied effected Hamilton personally. The way the whole affair had been handled may have felt like a breach of that romantic code of honor, something Hamilton himself took so seriously he was willing to let take his own life some twenty years later during a duel at Weehawken. It is strange that men like Tallmadge and Hamilton had so much respect for a man that, had his plan succeeded, would have had the both of them at the end of a rope instead of André and would have certainly meant the end of the cause they had given so much for. However this respect came more from the character of the man than what he had done or had planned to do. The young Colonel Hamilton learned that justice can be severe and may fall on men with good character who had otherwise deserved mercy. Hamilton grew older and more cynical but he carried this experience with him all through the political battles of the 1780s, especially as he fought for a strong executive branch during the debate over the Constitution. “Humanity and good policy conspire to dictate that the benign prerogative for pardoning should be as little as possible fettered or embarrassed,” he argued in Federalist 74 in favor of a presidential pardon. “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.” It is here that Hamilton, the New York lawyer in his mid-thirties channels the young Colonel petitioning his commander to show mercy towards a captured spy. It was people like André that Hamilton had in mind when he argued for a presidential pardon. People who he believed were honorable, and whose character contributed to their right of mercy and towards the betterment of society.
Unfortunately over the course of American history the president of the United States more often abuses this power for personal gain than he has used it to apply mercy to a case where mercy is needed. Almost all presidential pardons have been controversial and have been done so for the benefit of political donors or allies and occasionally even traitors. In 1865 President Andrew Johnson pardoned former rebel General Albert Pike who was accused of treason. Some years later in 1971, Richard Nixon pardoned Jimmy Hoffa, a union organizer convicted of attempted bribery. Just three years later Nixon would be pardoned by his successor for any and all crimes committed during the Watergate scandal. Crimes which had forced Nixon to resign the presidency that same year. In 1992, George H.W. Bush pardoned his Secretary of Defense for lying to investigators during the Iran-Contra Scandal, in which the previous administration had sold weapons to Iran in order to fund a dictatorship in central America. President Bill Clinton pardoned a billionaire businessman who wasn’t paying his taxes and illegally traded oil with Iran. In 2017, President Trump, without going through the justice department, pardoned Sheriff Joe Arpaio who was found in contempt of court after illegally targeting Latino Americans in Arizona. That same year President Trump pardoned conservative filmmaker Dinesh D’Souza who had pleaded guilty to making illegal campaign contributions because the president believed he was “treated very unfairly” with no specifics, as usual. Do any of these cases hold up to the standard set by John André and Alexander Hamilton all those years ago?
Despite the misuse of the pardon, it is not without its merits. You can take for example President Obama’s commuting sentences of minor non-violent drug offenders or of the former soldier Chelsea Manning, who although was passing the American intelligence secrets, did so out of love of country. She was careful the intelligence she passed along didn’t put anyone in danger and most importantly, she didn’t run from her crimes. Chelsea Manning stayed in the United States and suffered the consequences, in direct contrast to Edward Snowden who passed American intelligence secrets with no regard to American lives and fled to Russia. Manning's crimes meet the standard of a pardon.
Today the President holds pardons out like carrots on a stick for any of his former colleagues that keep their mouths closed about the investigation into his connections to a hostile foreign government in order to win the 2016 election. In 2018, once again ignoring the justice department, Trump pardoned Lewis Libby who had been convicted of lying to federal investigators and obstruction of justice. The message was clear. Lie for the president and he will pardon you. His own son, who openly worked with a hostile foreign government to obtain political dirt of his father’s opponent and failed (and who has not even been indicted yet), is spoken about as a potential candidate for a pardon. Benedict Arnold was never able to surrender West Point to the British. Does that make him any less deserving of justice? John André was multitalented and intelligent. He was an officer, and a patriot. He was brave, sympathetic, and honorable. He earned his rank by merit, not by birth and fought for his country rather than trying to sell it out. Can any of this be said of the President’s former campaign manager Paul Manafort or Donald Trump Jr? The presidential pardon gives the executive branch a powerful, almost monarchial tool that allows for full power over someone’s life and in some cases death. It can be used so arbitrarily that it seems more often to get in the way of justice than it is used towards its benefit. We need to ask ourselves if any president, especially the current one, should wield that power absolutely. Whenever a pardon is issued one should consider the case of Major John André and whether or not the person or people deserve the same measure of mercy.
Sources:
- Washington's Spies: The story of America's First Spy Ring by Alexander Rose
- Alexander Hamilton by Ron Chernow
- Turncoat: Benedict Arnold and the Crisis of American Liberty by Stephen Brumwell
- The Death and Resurrection of John André by John Knight
https://allthingsliberty.com/2018/08/the-death-and-resurrection-of-major-john-andre/
- Trump pardons former Sheriff Joe Arpaio
https://www.cnn.com/2017/08/25/politics/sheriff-joe-arpaio-donald-trump-pardon/index.html