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.