FReeper Book Club: The Debate over the Constitution, Federalist #74

In this very short essay, Hamilton takes a look at the President’s control of the military and parses the degrees of pardoning power the President will possess.

² 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.”

³ 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.

⁴ 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.

⁵ 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.

⁶ 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.

⁷ “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.”

⁸ This I consider as a mere redundancy in the plan as the right for which it provides would result of itself from the office.

⁹ He is also to be authorized to grant “reprieves and pardons for offenses against the United States, except in cases of impeachment.”

¹⁰ Humanity and good policy conspire to dictate that the benign prerogative of pardoning should be as little as possible fettered or embarrassed.

¹¹ 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.

¹² 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.

¹³ 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.

¹⁴ 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.

¹⁵ On these accounts, one man appears to be a more eligible dispenser of the mercy of government than a body of men.

¹⁶ 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.

¹⁷ This, it has been urged, ought to have depended upon the assent of one or both of the branches of the Legislative body.

¹⁸ 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.

¹⁹ As treason is a crime leveled 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.

²⁰ 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.

²² 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.

²³ It deserves particular attention that treason will often be connected with sedition, which embraces a large proportion of the community, as lately happened in Massachusetts.

²⁴ 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.

²⁵ 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.

²⁶ 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.

²⁷ 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.

²⁸ 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.

³⁰ 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.

³¹ 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.

Hamilton continues his methodical review of the powers of the President, lighting briefly on two areas that seem to him to be devoid of controversy before settling on the power of pardon. The first of these is that the President is to be Commander-in-Chief of the Armed Forces, uncontroversial in view of the experience of the Continental Congress and the Confederation government with respect to a clear chain of command, with the clear necessity of placing military command under civilian control in a republican form of government, and not least because George Washington, who was, after all, not only the victorious commander of the Revolution but the president of the Constitutional Convention, was waiting in the wings.

The larger issue of federal control of state militias was, in fact, quite controversial. Hamilton emphasizes the phrase referencing the President as commander of the militia of the several states “when called into the actual service of the United States” to forestall any further accusations of outright federal takeover of the state militias in peacetime. That accusation had already been leveled in several anti-Federalist writings, among them Federal Farmer #2, Brutus #1, DeWitt #2 and the Address of the Pennsylvania Minority, with regard to a federal takeover of all matters military and its inevitable effect on the diminution of state government. True, Congress was charged under Article I with establishing both training and a code of conduct for state militias, which Hamilton has addressed in Federalist #24 and #25, but that is not the same as direct command. It may be that the critics were more concerned with a Congress they did not know than a Commander-in-Chief whom they did.

The issue of the President requiring the opinion in writing of his staff was uncontroversial enough for Hamilton to consider it redundant, a judgment with which it is difficult to find fault (8).

The focus turns next on the issue of Presidential pardons for crimes committed under the jurisdiction of the federal government, other than the direct issue of impeachment (9). Of the anti-Federalists, Brutus had been particularly critical of the unfettered nature of the proposed federal Supreme Court. While a Presidential pardon does not alter the judgment of that body, it may in extraordinary cases be employed to alter the outcome with respect to the punishment of the convicted defendant.

In the specific case of the crime of treason, however, there is some debate in the matter. Hamilton allows the objection that a pardon from a crime that is inherently against society should be reviewed by the directly elected representatives of that society (19) at least as a matter of theoretical justice. There are, however, certain circumstances directly related to that crime that make this infeasible as Hamilton sees it. Where it is related to sedition (23) – Hamilton’s specific reference is to Shays’ Rebellion – it might be hazardous to the settlement of an inflammatory situation for the process to await the convening of Congress, the offer of a pardon being a prime inducement on the part of the President to the rebels to settle the matter at hand by means short of violence (27).

It is far from an exhaustive treatment of the subject of the Presidential pardon, but it is apparent that the topic was, at least in Hamilton’s estimation, no significant bar to ratification of the proposed Constitution.

To: 14themunny; 21stCenturion; 300magnum; A Strict Constructionist; abigail2; AdvisorB; Aggie Mama; ...

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2 posted on 12/30/2010 8:06:19 AM PST by Publius (No taxation without respiration.)

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