*** Index * Quote * Context ***
The Command of the Military and Naval Forces, and the Pardoning
Power of the Executive
To the People of the State of New York:
``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.
Hamilton From the New York Packet.
Tuesday, March 25, 1788.
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.