Federalist No.74

The Command Of The Military And Naval Forces, And The Pardoning Power Of The Executive

Tuesday, March 25, 1788

Alexander Hamilton


74.1

Hamilton’s title suggests two subjects for this paper, but in reality, he only discusses one. The matter of the President taking on the role of commander-in-chief of the army and navy seems such an obvious arrangement to Hamilton, that he barely discusses it: The propriety of this provision is so evident in itself, and it is, at the same time, so consonant to the precedents of State constitutions in general, that little need to be said to explain it or enforce it. War, he reasons, is the direction of the common strength, which implies that authority be concentrated, and the executive serves that role.

74.2

The remainder of this short paper discusses the issue of reprieves and pardons, which the Constitution empowers the President to bestow. Hamilton reasons that in every country there are cases which, though they come under the rule of law, require some extra consideration on their merit and circumstances. Hamilton says that the responsibility of having a man’s life in one’s hands, as well the risk that one might be accused of weakness or connivance would ensure that the power to reprieve would be used judiciously by the President. However, allowing a body of people, like the legislature, to make the decision could be problematic, since a numerous people given the case to judge might take confidence in their numbers, feel personally less responsible for the outcome, and therefore be less likely to give clemency: they might often encourage each other in an act of obduracy.

74.3

Hamilton extends this reasoning to cases that involve treason. He admits that the connivance of the chief magistrate – the President – could not be excluded. But he suggests that treasonous actions are often committed through seditions that include numerous people, and if a body tasked with deciding clemency was infected by that sedition, then clemency might wrongly be given. On the other hand, since treason is a crime against the State, it is a crime likely to inflame resentment, and the same body may be obstinate and inexorable in their opinions against clemency.

74.4

Hamilton makes one final point, that in times of uprising and rebellion, it might be necessary to show clemency in order short circuit hostilities and restore peace. The legislature might be too slow as a body to come to such a decision and the opportunity to restore peace might be lost. On the other hand, the legislature, given its more deliberative function, might decide to raise the prospect of clemency too soon in its dealings with insurgents, in order that a decision might be made in a timely fashion. In that example, clemency might begin to look like weakness rather than the benign prerogative that Hamilton imagines it would appear when granted by the President.

6 December 2019