The expediency of vesting the power of pardoning in the Pres_The Federalist Papers（#18）

if I mistake not, been only contested in relation to the crime of

treason. This, it has been urged, ought to have depended upon the

assent of one, or both, of the branches of the legislative body. I

shall not deny that there are strong reasons to be assigned for

requiring in this particular the concurrence of that body, or of a part

of it. As treason is a crime levelled at the immediate being of the

society, when the laws have once ascertained the guilt of the offender,

there seems a fitness in referring the expediency of an act of mercy

towards him to the judgment of the legislature. And this ought the

rather to be the case, as the supposition of the connivance of the

Chief Magistrate ought not to be entirely excluded. But there are also

strong objections to such a plan. It is not to be doubted, that a

single man of prudence and good sense is better fitted, in delicate

conjunctures, to balance the motives which may plead for and against

the remission of the punishment, than any numerous body whatever. It

deserves particular attention, that treason will often be connected

with seditions which embrace a large proportion of the community; as

lately happened in Massachusetts. 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. And when parties were pretty

equally matched, the secret sympathy of the friends and favorers of the

condemned person, availing itself of the good-nature and weakness of

others, might frequently bestow impunity where the terror of an example

was necessary. On the other hand, when the sedition had proceeded from

causes which had inflamed the resentments of the major party, they

might often be found obstinate and inexorable, when policy demanded a

conduct of forbearance and clemency. But the principal argument for

reposing the power of pardoning in this case to the Chief Magistrate is

this: 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 which, if

suffered to pass unimproved, it may never be possible afterwards to

recall. The dilatory process of convening the legislature, or one of

its branches, for the purpose of obtaining its sanction to the measure,

would frequently be the occasion of letting slip the golden

opportunity. The loss of a week, a day, an hour, may sometimes be

fatal. If it should be observed, that a discretionary power, with a

view to such contingencies, might be occasionally conferred upon the

President, it may be answered in the first place, that it is

questionable, whether, in a limited Constitution, that power could be

delegated by law; and in the second place, that it would generally be

impolitic beforehand to take any step which might hold out the prospect

of impunity. A proceeding of this kind, out of the usual course, would

be likely to be construed into an argument of timidity or of weakness,

and would have a tendency to embolden guilt.

PUBLIUS.

THE FEDERALIST.

No. LXXV.

The Treaty-Making Power of the Executive

For the Independent Journal.

HAMILTON

To the People of the State of New York:

The President is to have power, “by and with the advice and consent of

the Senate, to make treaties, provided two thirds of the senators

present concur.”

Though this provision has been assailed, on different grounds, with no

small degree of vehemence, I scruple not to declare my firm persuasion,

that it is one of the best digested and most unexceptionable parts of

the plan. One ground of objection is the trite topic of the

intermixture of powers; some contending that the President ought alone

to possess the power of making treaties; others, that it ought to have

been exclusively deposited in the Senate. Another source of objection

is derived from the small number of persons by whom a treaty may be

made. Of those who espouse this objection, a part are of opinion that

the House of Representatives ought to have been associated in the

business, while another part seem to think that nothing more was

necessary than to have substituted two thirds of ALL the members of the

Senate, to two thirds of the members PRESENT. As I flatter myself the

observations made in a preceding number upon this part of the plan must

have sufficed to place it, to a discerning eye, in a very favorable

light, I shall here content myself with offering only some

supplementary remarks, principally with a view to the objections which

have been just stated.

With regard to the intermixture of powers, I shall rely upon the

explanations already given in other places, of the true sense of the

rule upon which that objection is founded; and shall take it for

granted, as an inference from them, that the union of the Executive

with the Senate, in the article of treaties, is no infringement of that

rule. I venture to add, that the particular nature of the power of

making treaties indicates a peculiar propriety in that union. Though

several writers on the subject of government place that power in the

class of executive authorities, yet this is evidently an arbitrary

disposition; for if we attend carefully to its operation, it will be

found to partake more of the legislative than of the executive

character, though it does not seem strictly to fall within the

definition of either of them. The essence of the legislative authority

is to enact laws, or, in other words, to prescribe rules for the

regulation of the society; while the execution of the laws, and the

employment of the common strength, either for this purpose or for the

common defense, seem to comprise all the functions of the executive

magistrate. The power of making treaties is, plainly, neither the one

nor the other. It relates neither to the execution of the subsisting

laws, nor to the enaction of new ones; and still less to an exertion of

the common strength. Its objects are CONTRACTS with foreign nations,

which have the force of law, but derive it from the obligations of good

faith. They are not rules prescribed by the sovereign to the subject,

but agreements between sovereign and sovereign. The power in question

seems therefore to form a distinct department, and to belong, properly,

neither to the legislative nor to the executive. The qualities

elsewhere detailed as indispensable in the management of foreign

negotiations, point out the Executive as the most fit agent in those

transactions; while the vast importance of the trust, and the operation

of treaties as laws, plead strongly for the participation of the whole

or a portion of the legislative body in the office of making them.

However proper or safe it may be in governments where the executive

magistrate is an hereditary monarch, to commit to him the entire power

of making treaties, it would be utterly unsafe and improper to intrust

that power to an elective magistrate of four years’ duration. It has

been remarked, upon another occasion, and the remark is unquestionably

just, that an hereditary monarch, though often the oppressor of his

people, has personally too much stake in the government to be in any

material danger of being corrupted by foreign powers. But a man raised

from the station of a private citizen to the rank of chief magistrate,

possessed of a moderate or slender fortune, and looking forward to a

period not very remote when he may probably be obliged to return to the

station from which he was taken, might sometimes be under temptations

to sacrifice his duty to his interest, which it would require

superlative virtue to withstand. An avaricious man might be tempted to

betray the interests of the state to the acquisition of wealth. An

ambitious man might make his own aggrandizement, by the aid of a

foreign power, the price of his treachery to his constituents. The

history of human conduct does not warrant that exalted opinion of human

virtue which would make it wise in a nation to commit interests of so

delicate and momentous a kind, as those which concern its intercourse

with the rest of the world, to the sole disposal of a magistrate

created and circumstanced as would be a President of the United States.

To have intrusted the power of making treaties to the Senate alone,

would have been to relinquish the benefits of the constitutional agency

of the President in the conduct of foreign negotiations. It is true

that the Senate would, in that case, have the option of employing him

in this capacity, but they would also have the option of letting it

alone, and pique or cabal might induce the latter rather than the

former. Besides this, the ministerial servant of the Senate could not

be expected to enjoy the confidence and respect of foreign powers in

the same degree with the constitutional representatives of the nation,

and, of course, would not be able to act with an equal degree of weight

or efficacy. While the Union would, from this cause, lose a

considerable advantage in the management of its external concerns, the

people would lose the additional security which would result from the

co-operation of the Executive. Though it would be imprudent to confide

in him solely so important a trust, yet it cannot be doubted that his

participation would materially add to the safety of the society. It

must indeed be clear to a demonstration that the joint possession of

the power in question, by the President and Senate, would afford a

greater prospect of security, than the separate possession of it by

either of them. And whoever has maturely weighed the circumstances

which must concur in the appointment of a President, will be satisfied

that the office will always bid fair to be filled by men of such

characters as to render their concurrence in the formation of treaties

peculiarly desirable, as well on the score of wisdom, as on that of

integrity.

The remarks made in a former number, which have been alluded to in

another part of this paper, will apply with conclusive force against

the admission of the House of Representatives to a share in the

formation of treaties. The fluctuating and, taking its future increase

into the account, the multitudinous composition of that body, forbid us

to expect in it those qualities which are essential to the proper

execution of such a trust. Accurate and comprehensive knowledge of

foreign politics; a steady and systematic adherence to the same views;

a nice and uniform sensibility to national character; decision,

SECRECY, and despatch, are incompatible with the genius of a body so

variable and so numerous. The very complication of the business, by

introducing a necessity of the concurrence of so many different bodies,

would of itself afford a solid objection. The greater frequency of the

calls upon the House of Representatives, and the greater length of time

which it would often be necessary to keep them together when convened,

to obtain their sanction in the progressive stages of a treaty, would

be a source of so great inconvenience and expense as alone ought to

condemn the project.

The only objection which remains to be canvassed, is that which would

substitute the proportion of two thirds of all the members composing

the senatorial body, to that of two thirds of the members PRESENT. It

has been shown, under the second head of our inquiries, that all

provisions which require more than the majority of any body to its

resolutions, have a direct tendency to embarrass the operations of the

government, and an indirect one to subject the sense of the majority to

that of the minority. This consideration seems sufficient to determine

our opinion, that the convention have gone as far in the endeavor to

secure the advantage of numbers in the formation of treaties as could

have been reconciled either with the activity of the public councils or

with a reasonable regard to the major sense of the community. If two

thirds of the whole number of members had been required, it would, in

many cases, from the non-attendance of a part, amount in practice to a

necessity of unanimity. And the history of every political

establishment in which this principle has prevailed, is a history of

impotence, perplexity, and disorder. Proofs of this position might be

adduced from the examples of the Roman Tribuneship, the Polish Diet,

and the States-General of the Netherlands, did not an example at home

render foreign precedents unnecessary.

To require a fixed proportion of the whole body would not, in all

probability, contribute to the advantages of a numerous agency, better

then merely to require a proportion of the attending members. The

former, by making a determinate number at all times requisite to a

resolution, diminishes the motives to punctual attendance. The latter,

by making the capacity of the body to depend on a PROPORTION which may

be varied by the absence or presence of a single member, has the

contrary effect. And as, by promoting punctuality, it tends to keep the

body complete, there is great likelihood that its resolutions would

generally be dictated by as great a number in this case as in the

other; while there would be much fewer occasions of delay. It ought not

to be forgotten that, under the existing Confederation, two members

MAY, and usually DO, represent a State; whence it happens that

Congress, who now are solely invested with ALL THE POWERS of the Union,

rarely consist of a greater number of persons than would compose the

intended Senate. If we add to this, that as the members vote by States,

and that where there is only a single member present from a State, his

vote is lost, it will justify a supposition that the active voices in

the Senate, where the members are to vote individually, would rarely

fall short in number of the active voices in the existing Congress.

When, in addition to these considerations, we take into view the

co-operation of the President, we shall not hesitate to infer that the

people of America would have greater security against an improper use

of the power of making treaties, under the new Constitution, than they

now enjoy under the Confederation. And when we proceed still one step

further, and look forward to the probable augmentation of the Senate,

by the erection of new States, we shall not only perceive ample ground

of confidence in the sufficiency of the members to whose agency that

power will be intrusted, but we shall probably be led to conclude that

a body more numerous than the Senate would be likely to become, would

be very little fit for the proper discharge of the trust.

PUBLIUS.

THE FEDERALIST.

No. LXXVI.

The Appointing Power of the Executive

From the New York Packet.

Tuesday, April 1, 1788.

HAMILTON

To the People of the State of New York:

The President is “to NOMINATE, and, by and with the advice and consent

of the Senate, to appoint ambassadors, other public ministers and

consuls, judges of the Supreme Court, and all other officers of the

United States whose appointments are not otherwise provided for in the

Constitution. But the Congress may by law vest the appointment of such

inferior officers as they think proper, in the President alone, or in

the courts of law, or in the heads of departments. The President shall

have power to fill up ALL VACANCIES which may happen DURING THE RECESS

OF THE SENATE, by granting commissions which shall EXPIRE at the end of

their next session.”

It has been observed in a former paper, that “the true test of a good

government is its aptitude and tendency to produce a good

administration.” If the justness of this observation be admitted, the

mode of appointing the officers of the United States contained in the

foregoing clauses, must, when examined, be allowed to be entitled to

particular commendation. It is not easy to conceive a plan better

calculated than this to promote a judicious choice of men for filling

the offices of the Union; and it will not need proof, that on this

point must essentially depend the character of its administration.

It will be agreed on all hands, that the power of appointment, in

ordinary cases, ought to be modified in one of three ways. It ought

either to be vested in a single man, or in a SELECT assembly of a

moderate number; or in a single man, with the concurrence of such an

assembly. The exercise of it by the people at large will be readily

admitted to be impracticable; as waiving every other consideration, it

would leave them little time to do anything else. When, therefore,

mention is made in the subsequent reasonings of an assembly or body of

men, what is said must be understood to relate to a select body or

assembly, of the description already given. The people collectively,

from their number and from their dispersed situation, cannot be

regulated in their movements by that systematic spirit of cabal and

intrigue, which will be urged as the chief objections to reposing the

power in question in a body of men.

Those who have themselves reflected upon the subject, or who have

attended to the observations made in other parts of these papers, in

relation to the appointment of the President, will, I presume, agree to

the position, that there would always be great probability of having

the place supplied by a man of abilities, at least respectable.

Premising this, I proceed to lay it down as a rule, that one man of

discernment is better fitted to analyze and estimate the peculiar

qualities adapted to particular offices, than a body of men of equal or

perhaps even of superior discernment.

The sole and undivided responsibility of one man will naturally beget a

livelier sense of duty and a more exact regard to reputation. He will,

on this account, feel himself under stronger obligations, and more

interested to investigate with care the qualities requisite to the

stations to be filled, and to prefer with impartiality the persons who

may have the fairest pretensions to them. He will have FEWER personal

attachments to gratify, than a body of men who may each be supposed to

have an equal number; and will be so much the less liable to be misled

by the sentiments of friendship and of affection. A single

well-directed man, by a single understanding, cannot be distracted and

warped by that diversity of views, feelings, and interests, which

frequently distract and warp the resolutions of a collective body.

There is nothing so apt to agitate the passions of mankind as personal

considerations whether they relate to ourselves or to others, who are

to be the objects of our choice or preference. Hence, in every exercise

of the power of appointing to offices, by an assembly of men, we must

expect to see a full display of all the private and party likings and

dislikes, partialities and antipathies, attachments and animosities,

which are felt by those who compose the assembly. The choice which may

at any time happen to be made under such circumstances, will of course

be the result either of a victory gained by one party over the other,

or of a compromise between the parties. In either case, the intrinsic

merit of the candidate will be too often out of sight. In the first,

the qualifications best adapted to uniting the suffrages of the party,

will be more considered than those which fit the person for the

station. In the last, the coalition will commonly turn upon some

interested equivalent: “Give us the man we wish for this office, and

you shall have the one you wish for that.” This will be the usual

condition of the bargain. And it will rarely happen that the

advancement of the public service will be the primary object either of

party victories or of party negotiations.

The truth of the principles here advanced seems to have been felt by

the most intelligent of those who have found fault with the provision

made, in this respect, by the convention. They contend that the

President ought solely to have been authorized to make the appointments

under the federal government. But it is easy to show, that every

advantage to be expected from such an arrangement would, in substance,

be derived from the power of NOMINATION, which is proposed to be

conferred upon him; while several disadvantages which might attend the

absolute power of appointment in the hands of that officer would be

avoided. In the act of nomination, his judgment alone would be

exercised; and as it would be his sole duty to point out the man who,

with the approbation of the Senate, should fill an office, his

responsibility would be as complete as if he were to make the final

appointment. There can, in this view, be no difference others, who are