The Federalist Papers: No. 74
On this day in 1788, Federalist Paper No. 74 is published. The ever-organized Publius is still scrolling down his punch list of presidential powers.
This paper analyzes a few presidential powers in quick succession, but Publius spends the bulk of his time discussing the President’s ability to grant “reprieves and pardons for offenses against the United States, EXCEPT IN CASES OF IMPEACHMENT.”
Publius starts from the assumption that, for humane reasons, the “prerogative of pardoning should be as little as possible fettered or embarrassed.” A criminal code is sometimes necessarily strict. Thus, “easy access to exceptions in favor of unfortunate guilt” is necessary to keep justice from being too cruel. One man will do a better job of performing this task than a body of men. That single individual knows that the “fate of a fellow-creature depend[s] on his sole fiat.” This responsibility will “inspire scrupulousness and caution.” By contrast, responsibility gets diffused in a body of men, and those men will thus feel less motivation to be so careful.
Nevertheless, some objections were being made to the power as it relates to treason. Should the President and the Congress both consent to pardons, at least in that particular type of case?
Publius notes that “treason will often be connected with seditions which embrace a large proportion of the community.” Thus, the representatives of those people could also be “tainted with the same spirit.” What if the sedition begin to take on partisan overtones? Would one party be “obstinate and inexorable, when policy demanded a conduct of forbearance and clemency”?
Moreover, Publius concludes, there are sometimes “critical moments” in rebellions “when a well-timed offer of pardon to the insurgents or rebels may restore the tranquillity of the commonwealth.” In those cases, it is better to place the responsibility in the hands of one man who can move quickly.
Logistical note for those who care:
Alexander Hamilton wrote this particular essay!