country's honors, when he looked forward to the time at which he must
descend from the exalted eminence for ever, and reflected that no
exertion of merit on his part could save him from the unwelcome reverse;
such a man, in such a situation, would be much more violently tempted to
embrace a favorable conjuncture for attempting the prolongation of
his power, at every personal hazard, than if he had the probability of
answering the same end by doing his duty.
Would it promote the peace of the community, or the stability of the
government to have half a dozen men who had had credit enough to be
raised to the seat of the supreme magistracy, wandering among the
people like discontented ghosts, and sighing for a place which they were
destined never more to possess?
A third ill effect of the exclusion would be, the depriving the
community of the advantage of the experience gained by the chief
magistrate in the exercise of his office. That experience is the parent
of wisdom, is an adage the truth of which is recognized by the wisest as
well as the simplest of mankind. What more desirable or more essential
than this quality in the governors of nations? Where more desirable or
more essential than in the first magistrate of a nation? Can it be
wise to put this desirable and essential quality under the ban of
the Constitution, and to declare that the moment it is acquired, its
possessor shall be compelled to abandon the station in which it was
acquired, and to which it is adapted? This, nevertheless, is the precise
import of all those regulations which exclude men from serving their
country, by the choice of their fellowcitizens, after they have by a
course of service fitted themselves for doing it with a greater degree
of utility.
A fourth ill effect of the exclusion would be the banishing men from
stations in which, in certain emergencies of the state, their presence
might be of the greatest moment to the public interest or safety. There
is no nation which has not, at one period or another, experienced an
absolute necessity of the services of particular men in particular
situations; perhaps it would not be too strong to say, to the
preservation of its political existence. How unwise, therefore, must be
every such self-denying ordinance as serves to prohibit a nation
from making use of its own citizens in the manner best suited to
its exigencies and circumstances! Without supposing the personal
essentiality of the man, it is evident that a change of the chief
magistrate, at the breaking out of a war, or at any similar crisis, for
another, even of equal merit, would at all times be detrimental to the
community, inasmuch as it would substitute inexperience to experience,
and would tend to unhinge and set afloat the already settled train of
the administration.
A fifth ill effect of the exclusion would be, that it would operate as
a constitutional interdiction of stability in the administration. By
necessitating a change of men, in the first office of the nation, it
would necessitate a mutability of measures. It is not generally to be
expected, that men will vary and measures remain uniform. The contrary
is the usual course of things. And we need not be apprehensive that
there will be too much stability, while there is even the option of
changing; nor need we desire to prohibit the people from continuing
their confidence where they think it may be safely placed, and where,
by constancy on their part, they may obviate the fatal inconveniences of
fluctuating councils and a variable policy.
These are some of the disadvantages which would flow from the principle
of exclusion. They apply most forcibly to the scheme of a perpetual
exclusion; but when we consider that even a partial exclusion would
always render the readmission of the person a remote and precarious
object, the observations which have been made will apply nearly as fully
to one case as to the other.
What are the advantages promised to counterbalance these disadvantages?
They are represented to be: 1st, greater independence in the magistrate;
2d, greater security to the people. Unless the exclusion be perpetual,
there will be no pretense to infer the first advantage. But even in that
case, may he have no object beyond his present station, to which he may
sacrifice his independence? May he have no connections, no friends, for
whom he may sacrifice it? May he not be less willing by a firm conduct,
to make personal enemies, when he acts under the impression that a time
is fast approaching, on the arrival of which he not only MAY, but
MUST, be exposed to their resentments, upon an equal, perhaps upon an
inferior, footing? It is not an easy point to determine whether his
independence would be most promoted or impaired by such an arrangement.
As to the second supposed advantage, there is still greater reason to
entertain doubts concerning it. If the exclusion were to be perpetual,
a man of irregular ambition, of whom alone there could be reason in any
case to entertain apprehension, would, with infinite reluctance, yield
to the necessity of taking his leave forever of a post in which his
passion for power and pre-eminence had acquired the force of habit. And
if he had been fortunate or adroit enough to conciliate the good-will
of the people, he might induce them to consider as a very odious
and unjustifiable restraint upon themselves, a provision which was
calculated to debar them of the right of giving a fresh proof of their
attachment to a favorite. There may be conceived circumstances in which
this disgust of the people, seconding the thwarted ambition of such
a favorite, might occasion greater danger to liberty, than could ever
reasonably be dreaded from the possibility of a perpetuation in office,
by the voluntary suffrages of the community, exercising a constitutional
privilege.
There is an excess of refinement in the idea of disabling the people to
continue in office men who had entitled themselves, in their opinion,
to approbation and confidence; the advantages of which are at best
speculative and equivocal, and are overbalanced by disadvantages far
more certain and decisive.
PUBLIUS
FEDERALIST No. 73
The Provision For The Support of the Executive, and the Veto Power
From the New York Packet. Friday, March 21, 1788.
HAMILTON
To the People of the State of New York:
THE third ingredient towards constituting the vigor of the executive
authority, is an adequate provision for its support. It is evident
that, without proper attention to this article, the separation of the
executive from the legislative department would be merely nominal and
nugatory. The legislature, with a discretionary power over the salary
and emoluments of the Chief Magistrate, could render him as obsequious
to their will as they might think proper to make him. They might, in
most cases, either reduce him by famine, or tempt him by largesses,
to surrender at discretion his judgment to their inclinations. These
expressions, taken in all the latitude of the terms, would no doubt
convey more than is intended. There are men who could neither be
distressed nor won into a sacrifice of their duty; but this stern virtue
is the growth of few soils; and in the main it will be found that
a power over a man's support is a power over his will. If it were
necessary to confirm so plain a truth by facts, examples would not be
wanting, even in this country, of the intimidation or seduction of the
Executive by the terrors or allurements of the pecuniary arrangements of
the legislative body.
It is not easy, therefore, to commend too highly the judicious attention
which has been paid to this subject in the proposed Constitution. It is
there provided that "The President of the United States shall, at stated
times, receive for his services a compensation which shall neither be
increased nor diminished during the period for which he shall have been
elected; and he shall not receive within that period any other emolument
from the United States, or any of them." It is impossible to imagine
any provision which would have been more eligible than this. The
legislature, on the appointment of a President, is once for all to
declare what shall be the compensation for his services during the time
for which he shall have been elected. This done, they will have no power
to alter it, either by increase or diminution, till a new period
of service by a new election commences. They can neither weaken his
fortitude by operating on his necessities, nor corrupt his integrity
by appealing to his avarice. Neither the Union, nor any of its members,
will be at liberty to give, nor will he be at liberty to receive, any
other emolument than that which may have been determined by the first
act. He can, of course, have no pecuniary inducement to renounce or
desert the independence intended for him by the Constitution.
The last of the requisites to energy, which have been enumerated, are
competent powers. Let us proceed to consider those which are proposed to
be vested in the President of the United States.
The first thing that offers itself to our observation, is the qualified
negative of the President upon the acts or resolutions of the two houses
of the legislature; or, in other words, his power of returning all bills
with objections, to have the effect of preventing their becoming laws,
unless they should afterwards be ratified by two thirds of each of the
component members of the legislative body.
The propensity of the legislative department to intrude upon the rights,
and to absorb the powers, of the other departments, has been already
suggested and repeated; the insufficiency of a mere parchment
delineation of the boundaries of each, has also been remarked upon; and
the necessity of furnishing each with constitutional arms for its own
defense, has been inferred and proved. From these clear and indubitable
principles results the propriety of a negative, either absolute or
qualified, in the Executive, upon the acts of the legislative branches.
Without the one or the other, the former would be absolutely unable
to defend himself against the depredations of the latter. He might
gradually be stripped of his authorities by successive resolutions,
or annihilated by a single vote. And in the one mode or the other, the
legislative and executive powers might speedily come to be blended in
the same hands. If even no propensity had ever discovered itself in the
legislative body to invade the rights of the Executive, the rules of
just reasoning and theoretic propriety would of themselves teach us,
that the one ought not to be left to the mercy of the other, but ought
to possess a constitutional and effectual power of self-defense.
But the power in question has a further use. It not only serves as a
shield to the Executive, but it furnishes an additional security against
the enaction of improper laws. It establishes a salutary check upon the
legislative body, calculated to guard the community against the effects
of faction, precipitancy, or of any impulse unfriendly to the public
good, which may happen to influence a majority of that body.
The propriety of a negative has, upon some occasions, been combated
by an observation, that it was not to be presumed a single man would
possess more virtue and wisdom than a number of men; and that unless
this presumption should be entertained, it would be improper to give the
executive magistrate any species of control over the legislative body.
But this observation, when examined, will appear rather specious than
solid. The propriety of the thing does not turn upon the supposition
of superior wisdom or virtue in the Executive, but upon the supposition
that the legislature will not be infallible; that the love of power may
sometimes betray it into a disposition to encroach upon the rights of
other members of the government; that a spirit of faction may sometimes
pervert its deliberations; that impressions of the moment may sometimes
hurry it into measures which itself, on maturer reflexion, would
condemn. The primary inducement to conferring the power in question upon
the Executive is, to enable him to defend himself; the secondary one is
to increase the chances in favor of the community against the passing
of bad laws, through haste, inadvertence, or design. The oftener the
measure is brought under examination, the greater the diversity in the
situations of those who are to examine it, the less must be the danger
of those errors which flow from want of due deliberation, or of those
missteps which proceed from the contagion of some common passion or
interest. It is far less probable, that culpable views of any kind
should infect all the parts of the government at the same moment and in
relation to the same object, than that they should by turns govern and
mislead every one of them.
It may perhaps be said that the power of preventing bad laws includes
that of preventing good ones; and may be used to the one purpose as well
as to the other. But this objection will have little weight with
those who can properly estimate the mischiefs of that inconstancy and
mutability in the laws, which form the greatest blemish in the character
and genius of our governments. They will consider every institution
calculated to restrain the excess of law-making, and to keep things in
the same state in which they happen to be at any given period, as much
more likely to do good than harm; because it is favorable to greater
stability in the system of legislation. The injury which may possibly
be done by defeating a few good laws, will be amply compensated by the
advantage of preventing a number of bad ones.
Nor is this all. The superior weight and influence of the legislative
body in a free government, and the hazard to the Executive in a trial
of strength with that body, afford a satisfactory security that the
negative would generally be employed with great caution; and there
would oftener be room for a charge of timidity than of rashness in the
exercise of it. A king of Great Britain, with all his train of sovereign
attributes, and with all the influence he draws from a thousand
sources, would, at this day, hesitate to put a negative upon the joint
resolutions of the two houses of Parliament. He would not fail to
exert the utmost resources of that influence to strangle a measure
disagreeable to him, in its progress to the throne, to avoid being
reduced to the dilemma of permitting it to take effect, or of risking
the displeasure of the nation by an opposition to the sense of the
legislative body. Nor is it probable, that he would ultimately venture
to exert his prerogatives, but in a case of manifest propriety, or
extreme necessity. All well-informed men in that kingdom will accede
to the justness of this remark. A very considerable period has elapsed
since the negative of the crown has been exercised.
If a magistrate so powerful and so well fortified as a British monarch,
would have scruples about the exercise of the power under consideration,
how much greater caution may be reasonably expected in a President of
the United States, clothed for the short period of four years with the
executive authority of a government wholly and purely republican?
It is evident that there would be greater danger of his not using his
power when necessary, than of his using it too often, or too much. An
argument, indeed, against its expediency, has been drawn from this very
source. It has been represented, on this account, as a power odious in
appearance, useless in practice. But it will not follow, that because it
might be rarely exercised, it would never be exercised. In the case
for which it is chiefly designed, that of an immediate attack upon the
constitutional rights of the Executive, or in a case in which the public
good was evidently and palpably sacrificed, a man of tolerable firmness
would avail himself of his constitutional means of defense, and would
listen to the admonitions of duty and responsibility. 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 legislative body in a doubtful case, would hardly suffer their
partiality to delude them in a very plain case. I speak now with an eye
to a magistrate possessing only a common share of firmness. There are
men who, under any circumstances, will have the courage to do their duty
at every hazard.
But the convention have pursued a mean in this business, which will
both facilitate the exercise of the power vested 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 absolute
negative, 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 VETO, might not scruple to return it for reconsideration;
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
prevail, 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 mere 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
spite of the counterposing weight of the Executive. It is at any rate
far less probable that this should be the case, than 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 come 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 qualified negative, as has been elsewhere remarked, 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 has become so apparent, that persons who,
in compiling the Constitution, were violent opposers of it, have from
experience become its declared admirers.(1)
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 favor of that of Massachusetts. Two
strong reasons may be imagined for this preference. One is that the
judges, who are to be the interpreters of the law, might receive an
improper bias, from having given a previous opinion in their revisionary
capacities; the other is that by being often associated with the
Executive, they might be 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.
PUBLIUS
1. Mr. Abraham Yates, a warm opponent of the plan of the convention is
of this number.
FEDERALIST No. 74
The Command of the Military and Naval Forces, and the Pardoning Power of
the Executive.
From the New York Packet. Tuesday, March 25, 1788.
HAMILTON
To the People of the State of New York:
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 in itself, and it is, at the
same time, so consonant to the precedents of the State constitutions in
general, that little need 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 which 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 a 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 officers." 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 to be authorized to grant "reprieves and pardons for offenses
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 fettered or embarrassed. 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. 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. 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 numbers, they might often encourage each other in an act of
obduracy, and might be less sensible to the apprehension of suspicion or
censure for an injudicious or affected clemency. On these accounts, one
man appears to be a more eligible dispenser of the mercy of government,
than a body of men.