THE PRESIDENT OF THE UNITED STATES is 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.” Art. II, § 2, cl. 1, emphasis added.
The propriety of this provision is self-evident and consonant with the precedents of the State constitutions.
Even those State constitutions that join the chief executive with a council in the exercise of powers have for the most part concentrated the military authority in the chief executive alone.
The President Must Control the Conduct of War
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 requires direction of the common strength.
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 Official Reports from Executive Officers
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.” Art. II, § 2, cl. 2.
This is a mere redundancy included for clarity, since the right it authorizes would result from the office itself.
The Broad Pardon Power Is Best Exercised by a Single Person
The President is granted the “Power to grant Reprieves and Pardons for Offences against the United States, except in cases of impeachment.” Art. II, § 2, cl. 1 (emphasis added).
Both humanity and good policy dictate the benign prerogative of pardoning should be shackled or impeded as little as possible.
The criminal codes of every country are so severe that justice would wear a countenance too bloodthirsty and cruel without an easy access to exceptions in favor of unfortunate guilt.
A sense of responsibility is always strongest when undivided.
Thus an individual would be the most apt to attend to those forces which might plead for a mitigation of the rigor of the law, and the least apt to yield to those considerations calculated to shelter a fit object of the law’s vengeance.
Knowing that the fate of a fellow creature depended on his sole fiat would naturally inspire scrupulousness and caution in the President.
The dread of being accused of weakness or connivance in granting a pardon would beget an equal circumspection, though of a different kind.
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 requires direction of the common strength. The power of directing and employing the common strength forms a usual and essential part in the definition of the executive authority.
Groups of Individuals Are More Prone to Abuse the Pardon Power More Often
Groups of individuals generally derive confidence from their numbers.
On the one hand, they might often encourage each other to be unyielding and hard-hearted in the exercise of the pardon power.
On the other hand, a group holding the pardon power might be less aware of the suspicion and censure an injudicious or predetermined clemency would arouse in the community.
On these accounts, the mercy of government should be dispensed by one individual rather than a group of them.
The Pardon Power Properly Extends to Treason
Treason is a crime directed at the government itself.
Once the guilt of the offender is ascertained, it would seem fit to refer an act of mercy towards that offender to the judgment of the Federal legislature.
Further, the possibility always exists that the chief Executive – our President – might connive with the offender to effect a pardon.
For these reasons, some proposed that the power to pardon treason ought to require the assent of one or both chambers of the Congress.
But these concerns are outweighed by strong objections to a plan to vest the pardon power all or part of the Federal legislature.
A single individual of prudence and good sense is better fitted than a body of any number to balance the motives which may plead for and against the remission of the punishment in what might be delicate circumstances.
A single individual of prudence and good sense is better fitted than a body of any number to balance the motives which may plead for and against the remission of the punishment in what might be delicate circumstances.
Treason will often be connected with seditions that can embrace a large proportion of the community, as happened recently in Massachusetts, when economic difficulties led to a popular rebellion against Federal and State authorities.
In every such case, we might expect to see the representatives of the People tainted with the same spirit which had given birth to the offense.
Where a sedition proceeds from causes that inflame the resentments of the major party, the same representatives might be found obstinate and inexorable towards the offending minor party, when sound policy actually demanded forbearance and clemency.
Where the parties are pretty well equally matched, the friends and sympathizers of the condemned person – availing themselves of the weakness of some good-natured representatives – might persuade them to bestow the impunity of a pardon, when in fact the terror of an example was needed.
The Occasional Need for Swift Action Is the Ultimate Reason the Executive Alone Controls the Pardon Power
The decisive reason for reposing the power of pardon to the President 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 tranquility of the commonwealth.
Should one or more of these moments pass without action, they become impossible to recall.
The dilatory process of convening one or both branches of Congress to obtain approval of a pardon would frequently let slip the golden opportunity.
The loss of a week, a day, or even an hour may sometimes prove fatal.
Congress Ought to Have No Say at All in the Final Decision to Pardon
As for the suggestion that one or both branches of the Federal legislature might be vested with the power to pardon – subject to occasionally conferring it to the President in such emergencies – in the first place it is questionable whether the legislative department could delegate one of its powers to another department under our limited Constitution.
In the second place, it would generally be impolitic beforehand to take any step which might hold out the prospect of impunity to the offenders.
The act of conferring such power out of the usual course would likely be construed as timidity or weakness, and would have a tendency to embolden guilt.
Hamilton