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In the former supposition, his fortitude would be stimulated by his immediate interest in the power of his office; in the latter, by the probability of the sanction of his constituents; who, though they would naturally incline to the legislativo body in a doubtful case, would hardly suffer their partiality to deludo them in a very plain one. I speak now with an eye to a magistrate possessing only a common share of firmness. There are men who, under any circumstances, will havo the courage to do thoir duty at cvory bazard.
But the convention have pursued a mean in this business, which will both facilitate the exercise of the power vosted in this respect in the executive magistrate, and make its efficacy to depend on the sense of a considerable part of the legislative body. Instead of an absoluto, it is proposed to give the executive the qualified negative, already described. This is a power which would be much more readily exercised than the other. A man who might be afraid to defeat a law by his single yeto, might not scruple to return it for re-consideration; subject to being finally rejected, only in the event of more than one-third of each house, concurring in the sufficiency of his objections. He would be encouraged by the reflection, that if his opposition should provail, it would embark in it a very respectable proportion of the legislative body, whose influence would be united with his in supporting the propriety of his conduct in the public opinion. A direct and categorical negative has something in the appearance of it more harsh, and more apt to irritate, than the more suggestion of argumentative objections to be approved or disapproved, by those to whom they are addressed. In proportion as it would be less apt to offend, it would be more apt to be exercised; and for this very reason it may in practice be found more effectual. It is to be hoped that it will not often happen, that improper views will govern so large a proportion as two-thirds of both branches of the legislature at the same time; and this too in defiance of the counterpoising weight of the executive. It is at any rate for less probable, that this should be the caso, thau
that such views should taint the resolutions and conduct of a bare majority. A power of this nature in the executive, will often have a silent and unperceived, though forcible, operation. When men, engaged in unjustifiable pursuits, are aware, that obstructions may como from a quarter which they cannot control, they will often be restrained by the bare apprehension of opposition, from doing what they would with eagerness rush into, if no such external impediments were to be feared.
This qualificd negative, as has beon elsewhere romarked, is in this state vested in a council, consisting of the governor, with the chancellor and judges of the supreme court, or any two of them. It has been freely employed upon a variety of occasions, and frequently with success. And its utility bas become so apparent, the persons who, in compiling the constitution, were its violent opposers, have from experience become its declared admirers.*
I have in another place remarked, that the convention, in the formation of this part of their plan, had departed from the model of the constitution of this state, in favour of that of Massachusetts. Two strong reasons may be imagined for this preference. One, that the judges, who are to be the interpreters of the law, might receivo an improper bias, from having given a previous opinion in their rovisionary capacity. The other, that by being often associated with the executive, they might bo induced to embark too far in the political views of that magistrate, and thus a dangerous combination might by degrees be cemented between the executive and judiciary departments. It is impossible to keep the judges too distinct from every other avocation than that of expounding the laws. It is peculiarly dangerous to place them in a situation to be either corrupted or influenced by the executive.
* Mr. Abraham Yates, a warm opponent of the plan of the convention, is of this number.
NEW YORK, MARCH 25, 1788.
THE SAME VIEW CONTINUED, IN RELATION TO THE COMMANI) OF
THE NATIONAL FORCES, AND THE POWER OF PARDONING.
The president of the United States, is to be 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.” The propriety of this provision is so evident, and it is, at the same time, so consonant to the precedents of the state constitutions in goneral, that little nood be said to explain or enforce it. Even those of them which have, in other respects, coupled the chief magistrate with a council, have for the most part concentrated the military authority in him alone. Of all the cares or concerns of government, the direction of war most peculiarly demands those qualities wbich distinguish the exercise of power by a single hand. The direction of war, implies the direction of the common strength : and the power of directing and employing the common strength, forms an usual and essential part in the definition of the 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.” This
I consider as a mere redundancy in the plan; as the right for which it provides would result of itself from the office.
He is also authorized "to grant reprieves and pardons for offences against the United States, except in cases of impeachment." Humanity and good policy conspire to dictate, that the benign prerogative of pardoning, should be as little as possible fottered or embarrassed. The criminal code of every country partakes so much of necessary severity, that without an easy access to exceptions in favour of unfortunate guilt, justice would wear a countenance too sanguinary and cruel. As the sense of responsibility is always strongest, in proportion as it is undivided, it may be inferred, that a single man would be most ready to attend to the force of those motives, which might plead for a mitigation of the rigour of the law, and least apt to yield to considerations, which were calculated to shelter a fit object of its vengeance. The reflection that the fate of a fellow creature depended on his sole fiat, would naturally inspire scrupulousness and caution: The dread of being accused of weakness or connivance, would beget equal circumspection, though of a different kind. On the other hand, as men generally derive confidence from their number, they might often encourage each other in an act of obduracy, and might be less sensible to the apprehension of censure for an injudicious or affected clemency. On these accounts, one man appears to be a more eligible dispenser of the mercy of the government than a body of men.
The oxpediency of vesting the power of pardoning in the president has, if I mistake not, beon 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 crimo lovelled at the immediate being of the society, when the laws hare once ascertained the guilt of the offender, there seems a
fitness in referring the expediency of an act of mercy towards hiin to the judgment of the legislature. And this ought the rather to be the case, as the supposition of the connivance of tne 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 singlo 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 offence. And when parties were pretty equally poised, the secret sympathy of the frionds and favourors of the condemned, 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 bad 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 roposing the power of pardoning in this case in the chief magistrate, 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 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 ono of its branches, for the purpose of obtaining its sanction, 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