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. Second.

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. Third. 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. Fourth. 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.

FEDERALIST No. 70

The Executive Department Further Considered

From The Independent Journal. Saturday, March 15, 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 history, 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 republican 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.

Wherever two or more persons are engaged in any common enterprise or

pursuit, there is always danger of difference of opinion. If it be a

public trust or office, in which they are clothed with equal dignity

and authority, there is peculiar danger of personal emulation and even

animosity. From either, and especially from all these causes, the most

bitter dissensions are apt to spring. Whenever these happen, they lessen

the respectability, weaken the authority, and distract the plans and

operation of those whom they divide. If they should unfortunately assail

the supreme executive magistracy of a country, consisting of a plurality

of persons, they might impede or frustrate the most important measures

of the government, in the most critical emergencies of the state.

And what is still worse, they might split the community into the

most violent and irreconcilable factions, adhering differently to the

different individuals who composed the magistracy.

Men often oppose a thing, merely because they have had no agency in

planning it, or because it may have been planned by those whom

they dislike. But if they have been consulted, and have happened

to disapprove, opposition then becomes, in their estimation, an

indispensable duty of self-love. They seem to think themselves bound in

honor, and by all the motives of personal infallibility, to defeat the

success of what has been resolved upon contrary to their sentiments. Men

of upright, benevolent tempers have too many opportunities of remarking,

with horror, to what desperate lengths this disposition is sometimes

carried, and how often the great interests of society are sacrificed

to the vanity, to the conceit, and to the obstinacy of individuals, who

have credit enough to make their passions and their caprices interesting

to mankind. Perhaps the question now before the public may, in its

consequences, afford melancholy proofs of the effects of this despicable

frailty, or rather detestable vice, in the human character.

Upon the principles of a free government, inconveniences from the source

just mentioned must necessarily be submitted to in the formation of the

legislature; but it is unnecessary, and therefore unwise, to introduce

them into the constitution of the Executive. It is here too that they

may be most pernicious. In the legislature, promptitude of decision

is oftener an evil than a benefit. The differences of opinion, and the

jarrings of parties in that department of the government, though they

may sometimes obstruct salutary plans, yet often promote deliberation

and circumspection, and serve to check excesses in the majority. When

a resolution too is once taken, the opposition must be at an end. That

resolution is a law, and resistance to it punishable. But no favorable

circumstances palliate or atone for the disadvantages of dissension in

the executive department. Here, they are pure and unmixed. There is no

point at which they cease to operate. They serve to embarrass and weaken

the execution of the plan or measure to which they relate, from the

first step to the final conclusion of it. They constantly counteract

those qualities in the Executive which are the most necessary

ingredients in its composition--vigor and expedition, and this without

any counterbalancing good. In the conduct of war, in which the energy of

the Executive is the bulwark of the national security, every thing would

be to be apprehended from its plurality.

It must be confessed that these observations apply with principal weight

to the first case supposed--that is, to a plurality of magistrates of

equal dignity and authority a scheme, the advocates for which are not

likely to form a numerous sect; but they apply, though not with

equal, yet with considerable weight to the project of a council, whose

concurrence is made constitutionally necessary to the operations of the

ostensible Executive. An artful cabal in that council would be able to

distract and to enervate the whole system of administration. If no such

cabal should exist, the mere diversity of views and opinions would alone

be sufficient to tincture the exercise of the executive authority with a

spirit of habitual feebleness and dilatoriness.

(But one of the weightiest objections to a plurality in the Executive,

and which lies as much against the last as the first plan, is, that it

tends to conceal faults and destroy responsibility. Responsibility is of

two kinds--to censure and to punishment. The first is the more important

of the two, especially in an elective office. Man, in public trust, will

much oftener act in such a manner as to render him unworthy of being any

longer trusted, than in such a manner as to make him obnoxious to

legal punishment. But the multiplication of the Executive adds to the

difficulty of detection in either case. It often becomes impossible,

amidst mutual accusations, to determine on whom the blame or the

punishment of a pernicious measure, or series of pernicious measures,

ought really to fall. It is shifted from one to another with so much

dexterity, and under such plausible appearances, that the public opinion

is left in suspense about the real author. The circumstances which may

have led to any national miscarriage or misfortune are sometimes so

complicated that, where there are a number of actors who may have had

different degrees and kinds of agency, though we may clearly see upon

the whole that there has been mismanagement, yet it may be impracticable

to pronounce to whose account the evil which may have been incurred is

truly chargeable.)(E1)

(But one of the weightiest objections to a plurality in the Executive,

and which lies as much against the last as the first plan, is, that it

tends to conceal faults and destroy responsibility.

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