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.









THE FEDERALIST.