[1] _Vide Federal Farmer_.
THE FEDERALIST.
No. LXIX.
The Real Character of the Executive
From the New York Packet.
Friday, March 14, 1788.
HAMILTON
To the People of the State of New York:
I proceed now to trace the real characters of the proposed Executive,
as they are marked out in the plan of the convention. This will serve
to place in a strong light the unfairness of the representations which
have been made in regard to it.
The first thing which strikes our attention is, that the executive
authority, with few exceptions, is to be vested in a single magistrate.
This will scarcely, however, be considered as a point upon which any
comparison can be grounded; for if, in this particular, there be a
resemblance to the king of Great Britain, there is not less a
resemblance to the Grand Seignior, to the khan of Tartary, to the Man
of the Seven Mountains, or to the governor of New York.
That magistrate is to be elected for FOUR years; and is to be
re-eligible as often as the people of the United States shall think him
worthy of their confidence. In these circumstances there is a total
dissimilitude between HIM and a king of Great Britain, who is an
HEREDITARY monarch, possessing the crown as a patrimony descendible to
his heirs forever; but there is a close analogy between HIM and a
governor of New York, who is elected for THREE years, and is
re-eligible without limitation or intermission. If we consider how much
less time would be requisite for establishing a dangerous influence in
a single State, than for establishing a like influence throughout the
United States, we must conclude that a duration of FOUR years for the
Chief Magistrate of the Union is a degree of permanency far less to be
dreaded in that office, than a duration of THREE years for a
corresponding office in a single State.
The President of the United States would be liable to be impeached,
tried, and, upon conviction of treason, bribery, or other high crimes
or misdemeanors, removed from office; and would afterwards be liable to
prosecution and punishment in the ordinary course of law. The person of
the king of Great Britain is sacred and inviolable; there is no
constitutional tribunal to which he is amenable; no punishment to which
he can be subjected without involving the crisis of a national
revolution. In this delicate and important circumstance of personal
responsibility, the President of Confederated America would stand upon
no better ground than a governor of New York, and upon worse ground
than the governors of Maryland and Delaware.
The President of the United States is to have power to return a bill,
which shall have passed the two branches of the legislature, for
reconsideration; and the bill so returned is to become a law, if, upon
that reconsideration, it be approved by two thirds of both houses. The
king of Great Britain, on his part, has an absolute negative upon the
acts of the two houses of Parliament. The disuse of that power for a
considerable time past does not affect the reality of its existence;
and is to be ascribed wholly to the crown’s having found the means of
substituting influence to authority, or the art of gaining a majority
in one or the other of the two houses, to the necessity of exerting a
prerogative which could seldom be exerted without hazarding some degree
of national agitation. The qualified negative of the President differs
widely from this absolute negative of the British sovereign; and
tallies exactly with the revisionary authority of the council of
revision of this State, of which the governor is a constituent part. In
this respect the power of the President would exceed that of the
governor of New York, because the former would possess, singly, what
the latter shares with the chancellor and judges; but it would be
precisely the same with that of the governor of Massachusetts, whose
constitution, as to this article, seems to have been the original from
which the convention have copied.
The President is to be 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. He is to have
power to grant reprieves and pardons for offenses against the United
States, EXCEPT IN CASES OF IMPEACHMENT; to recommend to the
consideration of Congress such measures as he shall judge necessary and
expedient; to convene, on extraordinary occasions, both houses of the
legislature, or either of them, and, in case of disagreement between
them WITH RESPECT TO THE TIME OF ADJOURNMENT, to adjourn them to such
time as he shall think proper; to take care that the laws be faithfully
executed; and to commission all officers of the United States.” In most
of these particulars, the power of the President will resemble equally
that of the king of Great Britain and of the governor of New York. The
most material points of difference are these: First. The President will
have only the occasional command of such part of the militia of the
nation as by legislative provision may be called into the actual
service of the Union. The king of Great Britain and the governor of New
York have at all times the entire command of all the militia within
their several jurisdictions. In this article, therefore, the power of
the President would be inferior to that of either the monarch or the
governor. Secondly. The President is to be commander-in-chief of the
army and navy of the United States. In this respect his authority would
be nominally the same with that of the king of Great Britain, but in
substance much inferior to it. It would amount to nothing more than the
supreme command and direction of the military and naval forces, as
first General and admiral of the Confederacy; while that of the British
king extends to the DECLARING of war and to the RAISING and REGULATING
of fleets and armies, all which, by the Constitution under
consideration, would appertain to the legislature.[1] The governor of
New York, on the other hand, is by the constitution of the State vested
only with the command of its militia and navy. But the constitutions of
several of the States expressly declare their governors to be
commanders-in-chief, as well of the army as navy; and it may well be a
question, whether those of New Hampshire and Massachusetts, in
particular, do not, in this instance, confer larger powers upon their
respective governors, than could be claimed by a President of the
United States. Thirdly. The power of the President, in respect to
pardons, would extend to all cases, EXCEPT THOSE OF IMPEACHMENT. The
governor of New York may pardon in all cases, even in those of
impeachment, except for treason and murder. Is not the power of the
governor, in this article, on a calculation of political consequences,
greater than that of the President? All conspiracies and plots against
the government, which have not been matured into actual treason, may be
screened from punishment of every kind, by the interposition of the
prerogative of pardoning. If a governor of New York, therefore, should
be at the head of any such conspiracy, until the design had been
ripened into actual hostility he could insure his accomplices and
adherents an entire impunity. A President of the Union, on the other
hand, though he may even pardon treason, when prosecuted in the
ordinary course of law, could shelter no offender, in any degree, from
the effects of impeachment and conviction. Would not the prospect of a
total indemnity for all the preliminary steps be a greater temptation
to undertake and persevere in an enterprise against the public liberty,
than the mere prospect of an exemption from death and confiscation, if
the final execution of the design, upon an actual appeal to arms,
should miscarry? Would this last expectation have any influence at all,
when the probability was computed, that the person who was to afford
that exemption might himself be involved in the consequences of the
measure, and might be incapacitated by his agency in it from affording
the desired impunity? The better to judge of this matter, it will be
necessary to recollect, that, by the proposed Constitution, the offense
of treason is limited “to levying war upon the United States, and
adhering to their enemies, giving them aid and comfort”; and that by
the laws of New York it is confined within similar bounds. Fourthly.
The President can only adjourn the national legislature in the single
case of disagreement about the time of adjournment. The British monarch
may prorogue or even dissolve the Parliament. The governor of New York
may also prorogue the legislature of this State for a limited time; a
power which, in certain situations, may be employed to very important
purposes.
The President is to have power, with the advice and consent of the
Senate, to make treaties, provided two thirds of the senators present
concur. The king of Great Britain is the sole and absolute
representative of the nation in all foreign transactions. He can of his
own accord make treaties of peace, commerce, alliance, and of every
other description. It has been insinuated, that his authority in this
respect is not conclusive, and that his conventions with foreign powers
are subject to the revision, and stand in need of the ratification, of
Parliament. But I believe this doctrine was never heard of, until it
was broached upon the present occasion. Every jurist[2] of that
kingdom, and every other man acquainted with its Constitution, knows,
as an established fact, that the prerogative of making treaties exists
in the crown in its utmost plentitude; and that the compacts entered
into by the royal authority have the most complete legal validity and
perfection, independent of any other sanction. The Parliament, it is
true, is sometimes seen employing itself in altering the existing laws
to conform them to the stipulations in a new treaty; and this may have
possibly given birth to the imagination, that its co-operation was
necessary to the obligatory efficacy of the treaty. But this
parliamentary interposition proceeds from a different cause: from the
necessity of adjusting a most artificial and intricate system of
revenue and commercial laws, to the changes made in them by the
operation of the treaty; and of adapting new provisions and precautions
to the new state of things, to keep the machine from running into
disorder. In this respect, therefore, there is no comparison between
the intended power of the President and the actual power of the British
sovereign. The one can perform alone what the other can do only with
the concurrence of a branch of the legislature. It must be admitted,
that, in this instance, the power of the federal Executive would exceed
that of any State Executive. But this arises naturally from the
sovereign power which relates to treaties. If the Confederacy were to
be dissolved, it would become a question, whether the Executives of the
several States were not solely invested with that delicate and
important prerogative.
The President is also to be authorized to receive ambassadors and other
public ministers. This, though it has been a rich theme of declamation,
is more a matter of dignity than of authority. It is a circumstance
which will be without consequence in the administration of the
government; and it was far more convenient that it should be arranged
in this manner, than that there should be a necessity of convening the
legislature, or one of its branches, upon every arrival of a foreign
minister, though it were merely to take the place of a departed
predecessor.
The President is to nominate, and, WITH THE ADVICE AND CONSENT OF THE
SENATE, to appoint ambassadors and other public ministers, judges of
the Supreme Court, and in general all officers of the United States
established by law, and whose appointments are not otherwise provided
for by the Constitution. The king of Great Britain is emphatically and
truly styled the fountain of honor. He not only appoints to all
offices, but can create offices. He can confer titles of nobility at
pleasure; and has the disposal of an immense number of church
preferments. There is evidently a great inferiority in the power of the
President, in this particular, to that of the British king; nor is it
equal to that of the governor of New York, if we are to interpret the
meaning of the constitution of the State by the practice which has
obtained under it. The power of appointment is with us lodged in a
council, composed of the governor and four members of the Senate,
chosen by the Assembly. The governor CLAIMS, and has frequently
EXERCISED, the right of nomination, and is ENTITLED to a casting vote
in the appointment. If he really has the right of nominating, his
authority is in this respect equal to that of the President, and
exceeds it in the article of the casting vote. In the national
government, if the Senate should be divided, no appointment could be
made; in the government of New York, if the council should be divided,
the governor can turn the scale, and confirm his own nomination.[3] If
we compare the publicity which must necessarily attend the mode of
appointment by the President and an entire branch of the national
legislature, with the privacy in the mode of appointment by the
governor of New York, closeted in a secret apartment with at most four,
and frequently with only two persons; and if we at the same time
consider how much more easy it must be to influence the small number of
which a council of appointment consists, than the considerable number
of which the national Senate would consist, we cannot hesitate to
pronounce that the power of the chief magistrate of this State, in the
disposition of offices, must, in practice, be greatly superior to that
of the Chief Magistrate of the Union.
Hence it appears that, except as to the concurrent authority of the
President in the article of treaties, it would be difficult to
determine whether that magistrate would, in the aggregate, possess more
or less power than the Governor of New York. And it appears yet more
unequivocally, that there is no pretense for the parallel which has
been attempted between him and the king of Great Britain. But to render
the contrast in this respect still more striking, it may be of use to
throw the principal circumstances of dissimilitude into a closer group.
The President of the United States would be an officer elected by the
people for FOUR years; the king of Great Britain is a perpetual and
HEREDITARY prince. The one would be amenable to personal punishment and
disgrace; the person of the other is sacred and inviolable. The one
would have a QUALIFIED negative upon the acts of the legislative body;
the other has an ABSOLUTE negative. The one would have a right to
command the military and naval forces of the nation; the other, in
addition to this right, possesses that of DECLARING war, and of RAISING
and REGULATING fleets and armies by his own authority. The one would
have a concurrent power with a branch of the legislature in the
formation of treaties; the other is the SOLE POSSESSOR of the power of
making treaties. The one would have a like concurrent authority in
appointing to offices; the other is the sole author of all
appointments. The one can confer no privileges whatever; the other can
make denizens of aliens, noblemen of commoners; can erect corporations
with all the rights incident to corporate bodies. The one can prescribe
no rules concerning the commerce or currency of the nation; the other
is in several respects the arbiter of commerce, and in this capacity
can establish markets and fairs, can regulate weights and measures, can
lay embargoes for a limited time, can coin money, can authorize or
prohibit the circulation of foreign coin. The one has no particle of
spiritual jurisdiction; the other is the supreme head and governor of
the national church! What answer shall we give to those who would
persuade us that things so unlike resemble each other? The same that
ought to be given to those who tell us that a government, the whole
power of which would be in the hands of the elective and periodical
servants of the people, is an aristocracy, a monarchy, and a despotism.
PUBLIUS.
[1] A writer in a Pennsylvania paper, under the signature of TAMONY,
has asserted that the king of Great Britain owes his prerogative as
commander-in-chief to an annual mutiny bill. The truth is, on the
contrary, that his prerogative, in this respect, is immemorial, and
was only disputed, “contrary to all reason and precedent,” as
Blackstone vol. i., page 262, expresses it, by the Long Parliament of
Charles I. but by the statute the 13th of Charles II., chap. 6, it was
declared to be in the king alone, for that the sole supreme government
and command of the militia within his Majesty’s realms and dominions,
and of all forces by sea and land, and of all forts and places of
strength, EVER WAS AND IS the undoubted right of his Majesty and his
royal predecessors, kings and queens of England, and that both or
either house of Parliament cannot nor ought to pretend to the same.
[2] _Vide_ Blackstone’s _Commentaries_, vol i., p. 257.
[3] Candor, however, demands an acknowledgment that I do not think the
claim of the governor to a right of nomination well founded. Yet it is
always justifiable to reason from the practice of a government, till
its propriety has been constitutionally questioned. And independent of
this claim, when we take into view the other considerations, and
pursue them through all their consequences, we shall be inclined to
draw much the same conclusion.
THE FEDERALIST.
No. LXX.
(There are two slightly different versions of No. 70 included here.)
The Executive Department Further Considered
From the New York Packet.
Tuesday, March 18, 1788.
HAMILTON
To the People of the State of New York:
There is an idea, which is not without its advocates, that a vigorous
Executive is inconsistent with the genius of republican government. The
enlightened well-wishers to this species of government must at least
hope that the supposition is destitute of foundation; since they can
never admit its truth, without at the same time admitting the
condemnation of their own principles. Energy in the Executive is a
leading character in the definition of good government. It is essential
to the protection of the community against foreign attacks; it is not
less essential to the steady administration of the laws; to the
protection of property against those irregular and high-handed
combinations which sometimes interrupt the ordinary course of justice;
to the security of liberty against the enterprises and assaults of
ambition, of faction, and of anarchy. Every man the least conversant in
Roman story, knows how often that republic was obliged to take refuge
in the absolute power of a single man, under the formidable title of
Dictator, as well against the intrigues of ambitious individuals who
aspired to the tyranny, and the seditions of whole classes of the
community whose conduct threatened the existence of all government, as
against the invasions of external enemies who menaced the conquest and
destruction of Rome.
There can be no need, however, to multiply arguments or examples on
this head. A feeble Executive implies a feeble execution of the
government. A feeble execution is but another phrase for a bad
execution; and a government ill executed, whatever it may be in theory,
must be, in practice, a bad government.
Taking it for granted, therefore, that all men of sense will agree in
the necessity of an energetic Executive, it will only remain to
inquire, what are the ingredients which constitute this energy? How far
can they be combined with those other ingredients which constitute
safety in the republican sense? And how far does this combination
characterize the plan which has been reported by the convention?
The ingredients which constitute energy in the Executive are, first,
unity; secondly, duration; thirdly, an adequate provision for its
support; fourthly, competent powers.
The ingredients which constitute safety in the repub lican sense are,
first, a due dependence on the people, secondly, a due responsibility.
Those politicians and statesmen who have been the most celebrated for
the soundness of their principles and for the justice of their views,
have declared in favor of a single Executive and a numerous
legislature. They have with great propriety, considered energy as the
most necessary qualification of the former, and have regarded this as
most applicable to power in a single hand, while they have, with equal
propriety, considered the latter as best adapted to deliberation and
wisdom, and best calculated to conciliate the confidence of the people
and to secure their privileges and interests.
That unity is conducive to energy will not be disputed. Decision,
activity, secrecy, and despatch will generally characterize the
proceedings of one man in a much more eminent degree than the
proceedings of any greater number; and in proportion as the number is
increased, these qualities will be diminished.
This unity may be destroyed in two ways: either by vesting the power in
two or more magistrates of equal dignity and authority; or by vesting
it ostensibly in one man, subject, in whole or in part, to the control
and co-operation of others, in the capacity of counsellors to him. Of
the first, the two Consuls of Rome may serve as an example; of the
last, we shall find examples in the constitutions of several of the
States. New York and New Jersey, if I recollect right, are the only
States which have intrusted the executive authority wholly to single
men.[1] Both these methods of destroying the unity of the Executive
have their partisans; but the votaries of an executive council are the
most numerous. They are both liable, if not to equal, to similar
objections, and may in most lights be examined in conjunction.
The experience of other nations will afford little instruction on this
head. As far, however, as it teaches any thing, it teaches us not to be
enamoured of plurality in the Executive. We have seen that the
Achaeans, on an experiment of two Praetors, were induced to abolish
one. The Roman history records many instances of mischiefs to the
republic from the dissensions between the Consuls, and between the
military Tribunes, who were at times substituted for the Consuls. But
it gives us no specimens of any peculiar advantages derived to the
state from the circumstance of the plurality of those magistrates. That
the dissensions between them were not more frequent or more fatal, is a
matter of astonishment, until we advert to the singular position in
which the republic was almost continually placed, and to the prudent
policy pointed out by the circumstances of the state, and pursued by
the Consuls, of making a division of the government between them. The
patricians engaged in a perpetual struggle with the plebeians for the
preservation of their ancient authorities and dignities; the Consuls,
who were generally chosen out of the former body, were commonly united
by the personal interest they had in the defense of the privileges of
their order. In addition to this motive of union, after the arms of the
republic had considerably expanded the bounds of its empire, it became
an established custom with the Consuls to divide the administration
between themselves by lot one of them remaining at Rome to govern the
city and its environs, the other taking the command in the more distant
provinces. This expedient must, no doubt, have had great influence in
preventing those collisions and rivalships which might otherwise have
embroiled the peace of the republic.
But quitting the dim light of historical research, attaching ourselves
purely to the dictates of reason and good sense, we shall discover much
greater cause to reject than to approve the idea of plurality in the
Executive, under any modification whatever.