The Federalist Papers | Federalist No. 74
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The Federalist Papers | Federalist No. 74

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 well-timed 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

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