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.

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.