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Even though some republican theory suggested that pardons were incompatible with republican government (Beccaria, Montesquieu), the consensus at the founding was that, practically, they were necessary and even indispensable. /1 https://twitter.com/RachelBarkow/status/1342110324107972613
Virginia was the first state to discuss wholesale overhaul of criminal law immediately after independence (it was also the largest and most important state). The committee charged with revising the law initially suggested a bill that abolished pardons; Jefferson drafted it. /2
Due to the war, most of the bills in the revisal languished until Madison began presenting them in the 1780s. There were some other problems with the criminal bill too, but lack of pardon availability was assumed to be one of the reasons the legislature failed to pass it. /3
Pardons were useful for a number of things — like obtaining co-conspirator testimony. But they were also important for justice. They allowed factors to be taken into account that weren’t strictly covered by the law. And if the executive couldn’t do that /3
.... then, as St. George Tucker explained to his law students, juries would just factor in their own ideas of justice more aggressively into the trial stage, undermining the rule of law. Better to have it as an official possibility within the province of the executive. /4
So, while the initial idea was that pardons were a relic of monarchy (where crimes were an offense against the sovereign), quickly they were recognized as more than that—as a way to do justice when the law failed to fully encapsulate the whole person. /5
In his American version of Blackstone, Tucker explicitly notes that pardons are now seen as perfectly compatible with republican government (refuting Blackstone’s statement to the contrary). Do we really want a world where we don’t allow mercy? The founders didn’t. /end
