1787 Federalist 74 · Founding Made Plain

11787 Federalist No. 74

2The Command of the Military and Naval Forces,

3and the Pardoning Power of the Executive

4From the New York Packet.

5Tuesday, March 25, 1788.

6HAMILTON

7To the People of the State of New York:

8THE President of the United States is to be

9 "commander-in-chief of the army and navy

10 of the United States,

11 and of the militia of the several States

12 WHEN CALLED INTO THE ACTUAL SERVICE

13 of the United States."

14The propriety of this provision is so evident in itself,

15 and it is, at the same time,

16 so consonant to the precedents

17 of the State constitutions in general,

18 that little need be said to explain or enforce it.

19Even those of them which have, in other respects,

20 coupled the chief magistrate with a council,

21 have for the most part concentrated

22 the military authority

23 in him alone.

24Of all the cares or concerns of government,

25 the direction of war most peculiarly demands

26 those qualities which distinguish

27 the exercise of power by a single hand.

28The direction of war implies

29 the direction of the common strength;

30 and the power of directing and employing

31 the common strength,

32 forms a usual and essential part

33 in the definition of the executive authority.

34"The President may require the opinion, in writing,

35 of the principal officer in each

36 of the executive departments,

37 upon any subject relating to the duties

38 of their respective officers."

39This I consider as a mere redundancy in the plan,

40 as the right for which it provides

41 would result of itself from the office.

42He is also to be authorized to grant

43 "reprieves and pardons for offenses

44 against the United States,

45 EXCEPT IN CASES OF IMPEACHMENT."

46Humanity and good policy conspire to dictate,

47 that the benign prerogative of pardoning

48 should be as little as possible

49 fettered or embarrassed.

50The criminal code of every country

51 partakes so much of necessary severity,

52 that without an easy access to exceptions

53 in favor of unfortunate guilt,

54 justice would wear a countenance

55 too sanguinary and cruel.

56As the sense of responsibility is always strongest,

57 in proportion as it is undivided,

58 it may be inferred

59 that a single man would be most ready

60 to attend to the force of those motives

61 which might plead for a mitigation

62 of the rigor of the law,

63 and least apt to yield to considerations

64 which were calculated to shelter

65 a fit object of its vengeance.

66The reflection that the fate of a fellow-creature

67 depended on his sole fiat,

68 would naturally inspire scrupulousness and caution;

69 the dread of being accused of weakness or connivance,

70 would beget equal circumspection,

71 though of a different kind.

72On the other hand,

73 as men generally derive confidence from their numbers,

74 they might often encourage each other

75 in an act of obduracy,

76 and might be less sensible

77 to the apprehension of suspicion or censure

78 for an injudicious or affected clemency.

79On these accounts,

80 one man appears to be a more eligible dispenser

81 of the mercy of government, than a body of men.

82The expediency of vesting the power of pardoning

83 in the President has, if I mistake not,

84 been only contested in relation

85 to the crime of treason.

86This, it has been urged,

87 ought to have depended upon the assent of one,

88 or both, of the branches of the legislative body.

89I shall not deny

90 that there are strong reasons to be assigned

91 for requiring in this particular

92 the concurrence of that body, or of a part of it.

93As treason is a crime levelled

94 at the immediate being of the society,

95 when the laws have once ascertained

96 the guilt of the offender,

97 there seems a fitness in referring the expediency

98 of an act of mercy towards him

99 to the judgment of the legislature.

100And this ought the rather to be the case,

101 as the supposition of the connivance

102 of the Chief Magistrate

103 ought not to be entirely excluded.

104But there are also strong objections to such a plan.

105It is not to be doubted,

106 that a single man of prudence and good sense

107 is better fitted, in delicate conjunctures,

108 to balance the motives

109 which may plead for and against

110 the remission of the punishment,

111 than any numerous body whatever.

112It deserves particular attention,

113 that treason will often be connected with seditions

114 which embrace a large proportion of the community;

115 as lately happened in Massachusetts.

116In every such case,

117 we might expect to see the representation of the people

118 tainted with the same spirit

119 which had given birth to the offense.

120And when parties were pretty equally matched,

121 the secret sympathy of the friends and favorers

122 of the condemned person,

123 availing itself of the good-nature

124 and weakness of others,

125 might frequently bestow impunity

126 where the terror of an example was necessary.

127On the other hand,

128 when the sedition had proceeded from causes

129 which had inflamed the resentments

130 of the major party,

131 they might often be found obstinate and inexorable,

132 when policy demanded a conduct

133 of forbearance and clemency.

134But the principal argument

135 for reposing the power of pardoning in this case

136 to the Chief Magistrate is this:

137 in seasons of insurrection or rebellion,

138 there are often critical moments,

139 when a welltimed offer of pardon

140 to the insurgents or rebels

141 may restore the tranquillity of the commonwealth;

142 and which, if suffered to pass unimproved,

143 it may never be possible afterwards to recall.

144The dilatory process of convening the legislature,

145 or one of its branches,

146 for the purpose of obtaining its sanction

147 to the measure,

148 would frequently be the occasion

149 of letting slip the golden opportunity.

150The loss of a week, a day, an hour,

151 may sometimes be fatal.

152If it should be observed,

153 that a discretionary power,

154 with a view to such contingencies,

155 might be occasionally conferred upon the President,

156 it may be answered in the first place,

157 that it is questionable,

158 whether, in a limited Constitution,

159 that power could be delegated by law;

160 and in the second place,

161 that it would generally be impolitic beforehand

162 to take any step

163 which might hold out the prospect of impunity.

164A proceeding of this kind, out of the usual course,

165 would be likely to be construed

166 into an argument of timidity or of weakness,

167 and would have a tendency to embolden guilt.

168PUBLIUS.