Hamilton Defended a Pardon Power With No Senate Check in Federalist 74

The most kingly power in the Constitution was given to the president by men who had just fought a war against a king. That is the paradox at the center of the pardon clause, and every time a president uses it controversially, someone on television rediscovers it with a gasp, as if the Founders had left the safe unlocked by accident.

They did not. They argued about it, voted on it and defended it in print. The defense is Federalist 74, one of the shortest of Hamilton's essays on the presidency and one of the most carefully reasoned. Let us read it passage by passage, then look at what the Convention did and what the Supreme Court has done with the power since.

The text Hamilton was defending

Article II, Section 2, Clause 1 ends with a sentence that is short enough to memorize:

"he shall have Power to grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment."

Count the limits. There are exactly two. The power covers only "Offences against the United States", meaning federal crimes, not state ones. And it does not reach "Cases of Impeachment". There is no requirement of Senate consent, no requirement that the person first be convicted, no exception for treason, no exception for the president's friends. The Framers considered several of those limits and rejected them.

Passage one: a short word on the commander in chief

Federalist 74 actually begins with a different power. Hamilton notes that the president is to be commander in chief of the army and navy and of the militia when called into actual service, and he says this needs little defense, because even states that had otherwise hemmed in their governors made them commanders of the public force. War, he argues, demands the direction of a single hand. He also covers, briefly, the president's power to require written opinions from his department heads.

Then he turns to the subject that occupies most of the essay: mercy.

Passage two: why mercy must be easy to reach

Hamilton's opening on pardons is one of the most humane sentences in the Federalist:

"Humanity and good policy conspire to dictate, that the benign prerogative of pardoning should be as little as possible fettered or embarrassed."

He explains why at once:

"The criminal code of every country partakes so much of necessary severity, that without an easy access to exceptions in favor of unfortunate guilt, justice would wear a countenance too sanguinary and cruel."

This is not a soft-on-crime argument. Hamilton calls the severity of criminal law necessary. His point is that laws are general and cases are particular. A statute written for the worst offender will sometimes catch someone whose guilt is real but whose circumstances deserve mercy. Juries cannot always fix that, and judges are bound by the law. A system without a safety valve will occasionally do something cruel in the name of consistency. The pardon is the safety valve.

Anyone who believes in the rule of law should take the point seriously. The rule of law is not the rule of maximum punishment. Blackstone, whom every American lawyer of the founding era had read, treated the power to pardon as one of the great advantages of monarchy over other forms of government, precisely because it allowed the law to be tempered. Hamilton keeps the power and moves it from a hereditary king to an elected, impeachable president.

Passage three: one man, because responsibility is undivided

Why one person, and not a council, the Senate or the courts? Hamilton gives the answer that runs through every essay on the presidency:

"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 rigor of the law, and least apt to yield to considerations which were calculated to shelter a fit object of its vengeance."

Read that carefully, because it cuts in two directions. A single person, knowing the decision is his alone, will feel the pull of mercy more strongly. But he will also be more careful about pardoning someone who deserves punishment, because he alone will be blamed. A body of many members, Hamilton goes on, might encourage each other in an act of obduracy, or feel less personal responsibility for a bad pardon, since each could hide behind the others.

This is the same logic as Federalist 70, examined in Federalist 70 Read Closely, Hamilton's Case for Energy in One Executive. Divided responsibility is no responsibility. If the Senate had to approve pardons, every bad pardon would have a hundred parents and none of them would claim it.

Passage four: the treason question

The hardest question Hamilton faced was treason. Several critics argued that a president should not be able to pardon treason without the legislature's consent. The danger was obvious: a president might pardon co-conspirators in a plot he was part of.

Hamilton concedes there are strong reasons on that side. Treason is also the one crime the Constitution itself defines, as Treason Is the One Crime the Constitution Defines, and It Defines It Narrowly explains, which made it feel like a special case. Treason is a crime against the whole society, and the legislature seems the natural judge of mercy for it. But he answers that the president's other constraints suffice, and that there are strong reasons against bringing a legislative body into the decision. A single man of prudence and good sense, he writes, is better fitted in delicate moments to weigh the motives for and against mercy than any numerous body.

Then he makes the argument from timing, which decides the matter for him:

"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."

A legislature might not be in session. Convening it would take weeks. And a public debate over whether to offer mercy to rebels would itself be dangerous: if the offer were debated and refused, the rebels would know their fate and fight on. The opportunity to end a rebellion bloodlessly could be lost while Congress argued.

This was not abstract in 1788. Shays' Rebellion in Massachusetts had ended only the year before, and Massachusetts had extended clemency to most of the rebels. Hamilton's readers had just watched mercy used to restore peace.

What the Convention did

The text Hamilton defended was the product of deliberate votes at the Philadelphia Convention.

On August 25, 1787, Roger Sherman of Connecticut moved to require the consent of the Senate for pardons. The motion was defeated by a lopsided vote, with only one state in favor. Two days later, on August 27, Luther Martin of Maryland proposed limiting pardons to after conviction, but withdrew the idea after James Wilson pointed out that a pardon before conviction might be necessary to obtain the testimony of accomplices.

On September 15, 1787, two days before the signing, Edmund Randolph of Virginia moved to except treason from the pardon power. He argued that the president himself might be guilty and could pardon his co-conspirators. George Mason supported him. Others, including Wilson, answered that if the president were himself involved in treason, he could be impeached. Randolph's motion failed.

Randolph refused to sign the Constitution. Mason also refused to sign, and his published objections included the president's power to pardon treason, for reasons traced in George Mason Refused to Sign, and His Objections Became the Bill of Rights. Their objections on pardons lost, but they were not foolish, and Hamilton did them the courtesy of answering in print.

What the courts have said since

The Supreme Court has read the power broadly from the start, consistent with Hamilton's design.

In Ex parte Garland (1866), the Court held that a pardon may be granted at any time after an offense is committed, before legal proceedings, during them or after conviction, and that it reaches both the punishment and the legal disabilities that follow from the offense.

In Ex parte Grossman (1925), the question was whether the president could pardon criminal contempt of court. Philip Grossman of Chicago had violated a court injunction under the Prohibition laws, been found in criminal contempt and sentenced to a year in jail. President Calvin Coolidge commuted the sentence to a fine. The district court jailed Grossman anyway, reasoning that contempt was an offense against the court, not the United States, and that letting the president pardon it would destroy the judiciary's independence.

Chief Justice William Howard Taft, writing for a unanimous Court, disagreed. Criminal contempt, he wrote, is an offense against the United States in the sense the clause uses, and the English pardon power the Framers drew on had included it. Taft acknowledged the risk that a president might use pardons to undermine the courts, but answered that the Constitution's protection against abuse of the pardon power is the president's accountability, ultimately through impeachment, not a judicially invented limit.

That answer is Hamilton's answer, nearly a century and a half later.

The impeachment exception

The one great limit the Framers did write is the exception for "Cases of Impeachment". It was borrowed from English experience: in 1679 the Earl of Danby, impeached by the House of Commons, pleaded a pardon from Charles II, and Parliament later established that a royal pardon could not be pleaded to bar an impeachment. The Act of Settlement of 1701 wrote that rule down.

The American version means a president cannot use a pardon to stop an impeachment or to restore an impeached official to office. Impeachment is the people's remedy, exercised through their representatives, and the president cannot dispense with it. It is the limit that makes the rest of the power tolerable: whatever a president does with his pardons, he remains answerable for them to the House and the Senate. How the Convention settled on the grounds for impeachment is its own story, told in George Mason Lost the Word Maladministration and Impeachment Was Born Narrow.

The strongest objection, and the answer

Every recent president seems to provide fresh material for critics of the pardon power. President Gerald Ford pardoned Richard Nixon in September 1974. President Jimmy Carter granted amnesty to draft evaders on his first full day in office in 1977. President Joe Biden pardoned his son Hunter in December 2024 and issued broad preemptive pardons at the end of his term. President Trump, on January 20, 2025, granted clemency to people convicted or charged in connection with the events at the Capitol on January 6, 2021. Each decision was defended by one side and condemned by the other.

The objection, stated fairly, is this: a power with no check except impeachment invites favoritism, self-protection and political reward. A Senate consent requirement, or a treason exception, or a ban on pardoning family members, would prevent the worst abuses while keeping mercy available for ordinary cases.

Here is the answer, point by point.

1. The check is real; it is political, by design. A president who abuses the pardon power answers to the voters, to history and to the House. The Framers chose that check deliberately because it keeps responsibility in one visible place.
2. Any Senate check would become a partisan veto. Imagine a Senate controlled by the other party reviewing every commutation. Mercy would become one more bargaining chip, and the people who most need clemency, ordinary prisoners with no political patron, would wait longest.
3. Narrow amendments invite evasion. Ban pardons for family members, and the question becomes who counts as family. Ban self-pardons, and the question becomes what counts as indirect self-protection. Every rule adds litigation, and Hamilton's whole argument is that mercy needs to be quick.
4. The remedy for a bad pardon is to elect better presidents. That sounds glib. It is not. It is the Constitution's general answer to the abuse of discretion, and conservatives who distrust concentrated power should notice that the pardon is the rare executive power that can only shrink a punishment, never enlarge one.

The power can be abused. So can every power. The question Hamilton asked is whether the cure would be worse than the disease, and the answer he gave in 1788 still holds.

The case in brief

1. The pardon clause has only two limits: it covers federal offenses only, and it does not reach cases of impeachment.
2. Hamilton argued in Federalist 74 that mercy should be "as little as possible fettered or embarrassed", because necessary severity needs a safety valve.
3. He put the power in one person because undivided responsibility makes the decision both more merciful and more careful, and because a well-timed pardon can end a rebellion.
4. The Convention rejected a Senate check and a treason exception, and the Court in Ex parte Garland and Ex parte Grossman read the power broadly.
5. The answer to abuse is accountability through elections and impeachment, not a council that would turn mercy into a bargaining chip.

What you can do: read Article II, Section 2 on our Constitution page, then read the Justice Department's published list of clemency grants and judge each recent president's record for yourself.