Federalist 74 is the shortest of the papers thus far, discussing the Power to Pardon. Perhaps Hamilton had a deadline for AFNN to hit! Because the citizens were concerned about centralized power, they were naturally concerned about the President as commander and chief having control over state military forces.
Hamilton begins by pointing out that the Commander in Chief has authority over state forces only when they are in the service of the United States. Until that time they are under the command of the various states. He points out that even in those countries that require their chief executive to be subject to a council, the conduct of the military at war is always under the direction of a single person. This is because “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.”1
It is interesting that Hamilton grants only a small paragraph to this subject. Two things likely drive having such a brief a description of a critical part of the executive’s job. The first is that command requires accountability, and it is impossible to have accountability if more than one person is in charge and Hamilton feels no need to expound on that fact. The second is that the idea that the states would retain control over their troops except in a national emergency is completely non-controversial. As a Republic, it is completely natural that the states would be able to maintain this control.
After one sentence on the President’s ability to require the opinion of those who report to him in writing, Hamilton moves on to the nature of reprieves and pardons. With the exception of matters of impeachment, the President’s powers to pardon are absolute. In the case of President Nixon, remember that he resigned prior to being convicted of impeachment by the Senate which enabled Gerald Ford to pardon him.
In Hamilton’s words “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”. This parallels a Christian concept from St. Thomas that states that mercy without justice is the mother of dissolution; [and] justice without mercy is cruelty. There are times when strict adherence to the law may be a moral wrong, and it appears that the Founders were prepared for that possibility.
Of course, the occasional necessity for mercy does not necessarily mean that the pardon authority should lie in the hands of a single person. For this reason, Hamilton continues by saying that “one man appears to be a more eligible dispenser of the mercy of government, than a body of men.” There is the possibility when such matters are put to a committee or council, that a group decision might be influenced by factions within the group or the desire to be held in esteem by other members of that group.
The one argument against giving the President absolute pardon authority is the specific crime of treason. Hamilton acknowledges that there are good reasons for holding treason to a different standard. After all, it is a crime “levelled at the immediate being of the society” and that perhaps the legislature, as society’s representatives, should hold pardon power.
We should remember that Hamilton wanted a strong presidency and a person in that role for life. He was channeling Plato in this regard, that the best leader is a wise king. And again, it is always worth remembering that our Founders had a profound distrust of democracy because they felt, like Plato did, that it would lead to tyranny.
You can hear these concerned echoed here by Hamilton who points out that “It deserves particular attention, that treason will often be connected with seditions which embrace a large proportion of the community.” And because of that concern “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.”
If that is so, it only makes sense to keep the power of pardons out of the hands of the people’s representatives. But Hamilton concludes that the main reason for putting the power of pardons and reprieves in the hands of the President is that “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 it is that domestic tranquility that is the principal reason for the President to exercise his power with great wisdom and restraint.
Indeed.
Next: Federalist 75 Analysis
To read all of John Parillo’s work on the Federalist Papers, click here.
Footnotes
- Original quotes found here: https://federalist-papers.com/federalist-74/. ↩︎
Citation
This piece was originally published at American Free News Network and re-published with their permission.
