Original Argument: The Lost Chapters. Translated by Joshua Charles

Number 74

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

Alexander Hamilton

New York Packet

Tuesday, March 25, 1788

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 the actual service of the United States.”[1]

In addition to being in line with all the general precedents of the state constitutions as far as this subject is concerned, it is also so obviously appropriate that it doesn’t require anymore explanation or defense.  Even the state constitutions which have combined the Executive with some sort of executive council (to approve of his decisions) have, for the most part, concentrated the military authority on him alone.  Of all the duties and concerns of government, waging war is unique in that what it requires can only be provided by concentrating the power of waging it into a single hand.  The waging of a war implies having the ability to direct the whole strength of a nation, and the power of directing and using this national strength is part of the unusual and essential definition of 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 offices.”[2]

This statement merely states the obvious, since the right which it gives the President is automatically part of being President in the first place.  He is authorized “to grant reprieves and pardons for offences against the United States, except in cases of impeachment.”[3] Both the interests of humanity and good policy concur in concluding that the harmless ability of granting pardons should be as little restricted as possible.  Criminal codes all over the world tend to be so necessarily severe that without easy access to exceptions in cases of unfortunate guilt, justice would always appear to be too bloody and cruel.  Since the sense of personal responsibility increases as the number of people who hold that responsibility decreases, we can safely assume that a single man (the President) would be more than capable of taking into account the personal motives and circumstances of certain individuals which might not have been able to hold water when put up against the severity of the law.  Additionally, he would be the one least susceptible to simply trying to protect whomever he wished from the just requirements of the law.  The idea that the fate of a fellow human being would be completely dependent on his decision would naturally inspire the President to be very meticulous and cautious when deciding who to pardon and why.  His desire to not be accused of weakness, or of tacitly encouraging bad behavior, would also cause him to be cautious, but for entirely different reasons.  On the other hand, since men generally derive confidence in numbers, they might encourage each other to be hard headed in deciding whom to pardon, which would make them less fearful of being accused of inappropriately showing mercy.  Because of reasons like this, it appears to me that one man would be more capable of dealing out mercy on behalf of the government than a group of men would be.

If I am not mistaken, the wisdom of giving the President the power of pardoning has only been objected to as it relates to the crime of treason.[4] It has been argued that the power to pardon treason should have required the agreement of one, or both Houses of Congress.  I won’t deny that there are good reasons to require the involvement of one or both Houses of Congress in dealing with pardoning treason.  Since treason is a crime which is directed at society as a whole, once it has been lawfully determined that treason was committed, it would seem appropriate to require the consent of Congress in order to show mercy towards whoever was convicted.  This should actually be how pardoning treason should be dealt with, since it is not entirely possible to rule out a conspiracy of some sort on the part of the President.  But there are also many significant problems with such a plan.  It is beyond doubt that a single man of wisdom and good sense would be much more capable of balancing the arguments for and against pardoning treason than any given group of people would be, no matter the size.  We must also remember that treason typically involves seditious actions as well, as has recently occurred in Massachusetts.[5] In every such case, it is likely that the representatives of the People would be tainted by the same sort of spirit which gave rise to the sedition or treason in the first place.  With similar feelings on both the side of the People and their representatives, it is likely that the desire to do favors for friends, as well as mutual sympathy for either the condemned person (or people) would be enough to garner a vote for a pardon in Congress, when what may actually be needed was a terrifying example of what happens to those who commit such crimes.  On the other hand, if the sedition was the result of things which aroused the anger of the majority party, then they would most likely be unwilling to grant mercy, even when good policy dictated that such mercy should be granted.  But the primary argument in favor of giving the President the full power to pardon is this: during a time of insurrection or rebellion, there are often critical moments when a well-timed offer of pardon to the insurgents or rebels could very well reestablish peace and tranquility.  However, moments like that are few and far between, and if they are not taken advantage of, they may never come again.  The slow process of convening Congress in order to approve any offer of a pardon may allow golden opportunities such as this to slip through our fingers.  The loss of a week, a day, or even an hour may sometimes be fatal.

Some might say that, as a compromise, the President could occasionally be given the power to pardon in certain situations that may require such a power.  My answer to that would be this: first, it is questionable that under a limited Constitution, such a power could be delegated by a law; and secondly, in general, it would be unwise to extend even the prospect of a pardon before it was even required by any particular situation.  An action like that would tend to make the government appear weak, and might even embolden those who are guilty of sedition or treason.

Publius


[1]United States Constitution: Article II, Section 2, clause 1

[2]United States Constitution: same reference as previous footnote

[3]United States Constitution: same reference as previous footnote

[4]United States Constitution: Article III, Section 3

[5]Shays’ Rebellion (1787): Explanation found in Federalist No. 6.

Glenn gives the latest coronavirus numbers, updating YOU on everything needed to know as Americans and officials monitor China's new COVID-19 virus:

Daily Stats as of 5:30 AM CT (from John's Hopkins)

  • Total Confirmed Cases Worldwide: 799,995 (up from 735,135 Yesterday)
  • Total Confirmed Deaths Worldwide: 38,735 (up from 34,807 Yesterday)
  • Total Confirmed Recovered Worldwide: 169,995 (up from 155,950 Yesterday)
  • 5% of Active Cases are considered serious (requiring hospitalization) Steady from 5% Yesterday, but down from 19% high back in February
  • Note that 11% of US Confirmed Cases require Hospitalization, roughly on par with Italy at 12% requiring hospitalization
  • US has 164,359 Confirmed Cases and 3,173 Deaths, up from 142,746 cases and 2,489 deaths Yesterday
  • The United States of America now leads the world in total confirmed cases, with 63,000 more cases than Italy (although Italy leads the world in Deaths with 11,591 officially dead)
  • US has 3,173 Dead vs 5,507 Recovered and 3,512 in Critical Condition
  • The US Currently has 155,679 Active Cases of COVID-19, with less than 0.6% of the total US population tested
  • 15% of Americans who have been tested have been diagnosed with COVID-19
The Moment of Trump's Conversion: Dr Anthony Fauci Takes Full Responsibility https://dailycaller.com/2020/03/30/anthony-fauci-moment-donald-trump-realized-extend-social-distancing-mandate/
  • Dr Anthony Fauci, the Chief Medical Advisor to the coronavirus task force, explained on CNN that Trump listened and "got it right away" after being shown new data projecting as many as 3 Million deaths in the US if COVID-19 mitigation policies were lifted.
  • Fauci also said Trump's "first goal is to prevent suffering and death" and this was part of the reason why he knew the COVID-19 guidelines should be extended.
  • "You know, interestingly, we showed him the data, he looked at the data and he got it right away, it was a pretty clear picture," according to Fauci.
  • "Dr. Debbie Birx and I went in together and leaned over his desk and said 'Here is the data, take a look.'
  • Trump reportedly looked at them, understood the implications and he shook his head and said 'I guess we got to do it.'
  • "Medically, this is the right decision, and I stand behind it 100%," Fauci said.
  • "From a public health standpoint, we felt strongly that it would have been the wrong decision to pull back," Fauci said. "I mean, we are scientists, physicians, public health officials. We're not economists. We're sensitive to the idea that the economy could suffer, but weigh that against tens of thousands, hundreds of thousands of American lives."
  • "...it was patently obvious looking at the data that at the end of the day if we try to push back prematurely, not only would we lose lives, but it probably would hurt the economy as well. So you would lose on double accounts. So, to us, there was no question what the right choice was."
Washington DC, Virginia, Maryland Join States Issuing House Arrest Orders https://www.cnbc.com/2020/03/30/coronavirus-violators-of-marylands-stay-at-home-order-face-criminal-charges.html
  • Maryland and Virginia became the latest states on Monday to enact "stay-at-home" mandates amid the coronavirus outbreak, except for essential travel for work.
  • Virginia's order is in effect until June 10, making it one of the longest statewide mandates implemented so far.
  • Maryland's penalties for violating its order are among some of the strictest in the country, including a $1000 fine, and up to 30 days jail time for repeat offenders.
  • In total, more than 210 Million Americans now effectively live under some form of House Arrest or Shelter In Place type orders, with another, 50 Million facing travel or shopping/eating restrictions.
  • Only 6 states have not closed schools.