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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.
-
-