Federalist #74

The Command of the Military and Naval Forces, and the Pardoning Power of the Executive  (Hamilton)

The president of the United States is to be the Commander-in-Chief of the Army and Navy of the United States, and of the militia of the several states when called into actual service of the United States. The authority of the military is for the most part concentrated in him alone. Of all of the cares and concerns of government the direction of war  was one of those qualities which distinguish the exercise of power by a single hand. The direction of war implies the direction of the common strings, and the power of directing and employing the common strings forms a usual and essential part of the definition of the executive authority.

The president may require the opinion of each of the heads of the executive departments upon any subject relating to the duties of their respective offices. He is also authorized to grant reprieves and pardons for offenses against the United States except in cases of impeachment. Humanity and good policy dictate that the benign prerogative of pardoning should be in little as possible fettered or embarrassed. Criminal codes in every country have so much necessary severity that without easy access to exceptions in favor of unfortunate guilt justice would always be too cruel. The sense of responsibility is always strongest when it is undivided, it may be thought that a single man would be most able to attend to the force of those motives which plead for mitigation of the rigor of the law, and least apt to yield considerations which were calculated to shelter a fit object of its vengeance. The reflection that the fate of a fellow human depends on his sole discretion would naturally inspire scrupulousness and caution. The fear of being accused of weakness or connivance would lead to equal circumspection, though of a different kind. On the other hand, men generally derive confidence from their numbers and in 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 mercy of the government then a body of men.

 Vesting the power of pardoning in the presidency  is only contested in relation to the crime of treason. It was felt that clemency on this charge should rest with the legislature. Hamilton understands where the critics are coming from on the matter of treason. Treason is a crime leveled at the immediate being of society when the asserted the guilt of the offender. Because of this there seems to be a rightness in referring the expediency of an active mercy towards the judgment of the legislature. Hamilton says this ought to be the case, but the chief executive should not be excluded. He says there are strong objections to such a plan. It is not to be doubted that a single man is better fitted in delicate situations to balance the motives for which may be foreign against the remission of the punishment then a body of numerous men. Treason will often be connected with seditions which affect a large portion of the community. In these cases, we might expect to see the representation of the people painted with the same spirit which is given birth to the offense. When the parties are equally matched, the secret sympathy of the friends of the condemned may frequently bestowed impunity where the tenor of an example was necessary. On the other hand, when the crime had proceeded from causes which had inflamed the resentment of the majority they might often be found obstinate and inexorable when policy demands  the conduct of clemency. The main argument for placing the power of pardon in the hands of the chief executive is this: in times of insurrection or rebellion, there are often critical moments when a well-timed pardon to the insurgents or rebels may restore the tranquility of the Commonwealth. The process of convening the legislature or one of its branches for the purpose of obtaining such a measure would frequently take too much time and cause the opportunity to pass. 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 be generally impolitic beforehand to take any step which might hold out the prospect of impunity. A proceeding of this kind out of the usual order, would be likely construed into an argument of being timid or weak, and have a tendency to embolden guilt.