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
offences 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 offence. 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 well-timed offer
of pardon to the insurgents or rebels may restore the tranquillity
of the common wealth; 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 before hand 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.
Signed "PUBLIUS"
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