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FEDERALIST No. 74

The Command of the Military and Naval Forces, and the Pardoning
 Power of the Executive
From the New York Packet.
Tuesday, March 25, 1788.

HAMILTON

To the People of the State of New York:
THE President of the United States is to be ``commander-in-chief
 of the army and navy of the United States, and of the militia of the
 several States WHEN CALLED INTO THE ACTUAL SERVICE of the United
 States.'' The propriety of this provision is so evident in itself,
 and it is, at the same time, so consonant to the precedents of the
 State constitutions in general, that little need be said to explain
 or enforce it. Even those of them which have, in other respects,
 coupled the chief magistrate with a council, have for the most part
 concentrated the military authority in him alone. Of all the cares
 or concerns of government, the direction of war most peculiarly
 demands those qualities which distinguish the exercise of power by a
 single hand. The direction of war implies the direction of the
 common strength; and the power of directing and employing the
 common strength, forms a usual and essential part in the definition
 of the executive authority.
``The President may require the opinion, in writing, of the
 principal officer in each of the executive departments, upon any
 subject relating to the duties of their respective officers.'' This
 I consider as a mere redundancy in the plan, as the right for which
 it provides would result of itself from the office.
He 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.
The expediency of vesting the power of pardoning in the
 President has, if I mistake not, been only contested in relation to
 the crime of treason. This, it has been urged, ought to have
 depended upon the assent of one, or both, of the branches of the
 legislative body. I shall not deny that there are strong reasons to
 be assigned for requiring in this particular the concurrence of that
 body, or of a part of it. As treason is a crime levelled at the
 immediate being of the society, when the laws have once ascertained
 the guilt of the offender, there seems a fitness in referring the
 expediency of an act of mercy towards him to the judgment of the
 legislature. And this ought the rather to be the case, as the
 supposition of the connivance of the Chief Magistrate ought not to
 be entirely excluded. But there are also strong objections to such
 a plan. It is not to be doubted, that a single man of prudence and
 good sense is better fitted, in delicate conjunctures, to balance
 the motives which may plead for and against the remission of the
 punishment, than any numerous body whatever. It deserves particular
 attention, that treason will often be connected with seditions which
 embrace a large proportion of the community; as lately happened in
 Massachusetts. In every such case, we might expect to see the
 representation of the people tainted with the same spirit which had
 given birth to the offense. And when parties were pretty equally
 matched, the secret sympathy of the friends and favorers of the
 condemned person, availing itself of the good-nature and weakness of
 others, might frequently bestow impunity where the terror of an
 example was necessary. On the other hand, when the sedition had
 proceeded from causes which had inflamed the resentments of the
 major party, they might often be found obstinate and inexorable,
 when policy demanded a conduct of forbearance and clemency. But the
 principal argument for reposing the power of pardoning in this case
 to the Chief Magistrate is this: in seasons of insurrection or
 rebellion, there are often critical moments, when a welltimed offer
 of pardon to the insurgents or rebels may restore the tranquillity
 of the commonwealth; and which, if suffered to pass unimproved, it
 may never be possible afterwards to recall. The dilatory process of
 convening the legislature, or one of its branches, for the purpose
 of obtaining its sanction to the measure, would frequently be the
 occasion of letting slip the golden opportunity. The loss of a
 week, a day, an hour, may sometimes be fatal. If it should be
 observed, that a discretionary power, with a view to such
 contingencies, might be occasionally conferred upon the President,
 it may be answered in the first place, that it is questionable,
 whether, in a limited Constitution, that power could be delegated by
 law; and in the second place, that it would generally be impolitic
 beforehand to take any step which might hold out the prospect of
 impunity. A proceeding of this kind, out of the usual course, would
 be likely to be construed into an argument of timidity or of
 weakness, and would have a tendency to embolden guilt.
PUBLIUS.