1787 Federalist 69 · Founding Made Plain

11787 Federalist No. 69

2The Real Character of the Executive

3From the New York Packet.

4Friday, March 14, 1788.

5HAMILTON

6To the People of the State of New York:

7I PROCEED now to trace the real characters

8 of the proposed Executive,

9 as they are marked out in the plan of the convention.

10This will serve to place in a strong light

11 the unfairness of the representations

12 which have been made in regard to it.

13The first thing which strikes our attention is,

14 that the executive authority, with few exceptions,

15 is to be vested in a single magistrate.

16This will scarcely, however, be considered

17 as a point upon which any comparison can be grounded;

18 for if, in this particular,

19 there be a resemblance

20 to the king of Great Britain,

21 there is not less a resemblance

22 to the Grand Seignior, to the khan of Tartary,

23 to the Man of the Seven Mountains,

24 or to the governor of New York.

25That magistrate is to be elected for FOUR years;

26 and is to be re-eligible as often

27 as the people of the United States

28 shall think him worthy of their confidence.

29In these circumstances there is a total dissimilitude

30 between HIM and a king of Great Britain,

31 who is an HEREDITARY monarch,

32 possessing the crown as a patrimony

33 descendible to his heirs forever;

34 but there is a close analogy

35 between HIM and a governor of New York,

36 who is elected for THREE years,

37 and is re-eligible without limitation

38 or intermission.

39If we consider how much less time would be requisite

40 for establishing a dangerous influence

41 in a single State,

42 than for establishing a like influence

43 throughout the United States,

44 we must conclude that a duration of FOUR years

45 for the Chief Magistrate of the Union

46 is a degree of permanency far less to be dreaded

47 in that office,

48 than a duration of THREE years

49 for a corresponding office in a single State.

50The President of the United States

51 would be liable to be impeached, tried,

52 and, upon conviction of treason, bribery,

53 or other high crimes or misdemeanors,

54 removed from office;

55 and would afterwards be liable

56 to prosecution and punishment

57 in the ordinary course of law.

58The person of the king of Great Britain

59 is sacred and inviolable;

60 there is no constitutional tribunal

61 to which he is amenable;

62 no punishment to which he can be subjected

63 without involving the crisis

64 of a national revolution.

65In this delicate and important circumstance

66 of personal responsibility,

67 the President of Confederated America

68 would stand upon no better ground

69 than a governor of New York,

70 and upon worse ground

71 than the governors of Maryland and Delaware.

72The President of the United States

73 is to have power to return a bill,

74 which shall have passed the two branches

75 of the legislature, for reconsideration;

76 and the bill so returned is to become a law,

77 if, upon that reconsideration,

78 it be approved by two thirds of both houses.

79The king of Great Britain, on his part,

80 has an absolute negative

81 upon the acts of the two houses of Parliament.

82The disuse of that power for a considerable time past

83 does not affect the reality of its existence;

84 and is to be ascribed wholly

85 to the crown's having found the means

86 of substituting influence to authority,

87 or the art of gaining a majority

88 in one or the other of the two houses,

89 to the necessity of exerting a prerogative

90 which could seldom be exerted

91 without hazarding some degree

92 of national agitation.

93The qualified negative of the President

94 differs widely from this absolute negative

95 of the British sovereign;

96 and tallies exactly with the revisionary authority

97 of the council of revision of this State,

98 of which the governor is a constituent part.

99In this respect the power of the President

100 would exceed that of the governor of New York,

101 because the former would possess, singly,

102 what the latter shares

103 with the chancellor and judges;

104 but it would be precisely the same

105 with that of the governor of Massachusetts,

106 whose constitution, as to this article,

107 seems to have been the original

108 from which the convention have copied.

109The President is to be the

110 "commander-in-chief of the army and navy

111 of the United States,

112 and of the militia of the several States,

113 when called into the actual service

114 of the United States.

115He is to have power to grant reprieves and pardons

116 for offenses against the United States,

117 EXCEPT IN CASES OF IMPEACHMENT;

118 to recommend to the consideration of Congress

119 such measures as he shall judge

120 necessary and expedient;

121 to convene, on extraordinary occasions,

122 both houses of the legislature, or either of them,

123 and, in case of disagreement between them

124 WITH RESPECT TO THE TIME OF ADJOURNMENT,

125 to adjourn them to such time

126 as he shall think proper;

127 to take care that the laws be faithfully executed;

128 and to commission all officers of the United States."

129In most of these particulars,

130 the power of the President will resemble equally

131 that of the king of Great Britain

132 and of the governor of New York.

133The most material points of difference are these:

134First. The President will have only the occasional command

135 of such part of the militia of the nation

136 as by legislative provision

137 may be called into the actual service of the Union.

138The king of Great Britain and the governor of New York

139 have at all times the entire command

140 of all the militia within

141 their several jurisdictions.

142In this article, therefore,

143 the power of the President would be inferior

144 to that of either the monarch or the governor.

145Secondly. The President is to be commander-in-chief

146 of the army and navy of the United States.

147In this respect his authority would be nominally the same

148 with that of the king of Great Britain,

149 but in substance much inferior to it.

150It would amount to nothing more

151 than the supreme command and direction

152 of the military and naval forces,

153 as first General and admiral of the Confederacy;

154 while that of the British king extends

155 to the DECLARING of war

156 and to the RAISING and REGULATING

157 of fleets and armies,

158 all which, by the Constitution under consideration,

159 would appertain to the legislature. 1

160The governor of New York, on the other hand,

161 is by the constitution of the State

162 vested only with the command

163 of its militia and navy.

164But the constitutions of several of the States

165 expressly declare their governors

166 to be commanders-in-chief,

167 as well of the army as navy;

168 and it may well be a question,

169 whether those of New Hampshire and Massachusetts,

170 in particular, do not, in this instance,

171 confer larger powers

172 upon their respective governors,

173 than could be claimed

174 by a President of the United States.

175Thirdly. The power of the President, in respect to pardons,

176 would extend to all cases, EXCEPT THOSE OF IMPEACHMENT.

177The governor of New York may pardon in all cases,

178 even in those of impeachment,

179 except for treason and murder.

180Is not the power of the governor, in this article,

181 on a calculation of political consequences,

182 greater than that of the President?

183All conspiracies and plots against the government,

184 which have not been matured into actual treason,

185 may be screened from punishment of every kind,

186 by the interposition

187 of the prerogative of pardoning.

188If a governor of New York, therefore,

189 should be at the head of any such conspiracy,

190 until the design had been ripened into actual hostility

191 he could insure his accomplices and adherents

192 an entire impunity.

193A President of the Union, on the other hand,

194 though he may even pardon treason,

195 when prosecuted in the ordinary course of law,

196 could shelter no offender, in any degree,

197 from the effects of impeachment and conviction.

198Would not the prospect of a total indemnity

199 for all the preliminary steps

200 be a greater temptation

201 to undertake and persevere

202 in an enterprise against the public liberty,

203 than the mere prospect of an exemption

204 from death and confiscation,

205 if the final execution of the design,

206 upon an actual appeal to arms, should miscarry?

207Would this last expectation have any influence at all,

208 when the probability was computed,

209 that the person who was to afford that exemption

210 might himself be involved

211 in the consequences of the measure,

212 and might be incapacitated by his agency in it

213 from affording the desired impunity?

214The better to judge of this matter,

215 it will be necessary to recollect,

216 that, by the proposed Constitution,

217 the offense of treason is limited

218 "to levying war upon the United States,

219 and adhering to their enemies,

220 giving them aid and comfort";

221 and that by the laws of New York

222 it is confined within similar bounds.

223Fourthly. The President can only adjourn

224 the national legislature

225 in the single case of disagreement

226 about the time of adjournment.

227The British monarch may prorogue

228 or even dissolve the Parliament.

229The governor of New York may also prorogue

230 the legislature of this State for a limited time;

231 a power which, in certain situations,

232 may be employed to very important purposes.

233The President is to have power,

234 with the advice and consent of the Senate,

235 to make treaties,

236 provided two thirds of the senators present concur.

237The king of Great Britain

238 is the sole and absolute representative of the nation

239 in all foreign transactions.

240He can of his own accord make treaties of peace,

241 commerce, alliance, and of every other description.

242It has been insinuated,

243 that his authority in this respect is not conclusive,

244 and that his conventions with foreign powers

245 are subject to the revision,

246 and stand in need of the ratification,

247 of Parliament.

248But I believe this doctrine was never heard of,

249 until it was broached upon the present occasion.

250Every jurist 2 of that kingdom,

251 and every other man acquainted with its Constitution,

252 knows, as an established fact,

253 that the prerogative of making treaties

254 exists in the crown in its utomst plentitude;

255 and that the compacts entered into

256 by the royal authority

257 have the most complete legal validity

258 and perfection,

259 independent of any other sanction.

260The Parliament, it is true,

261 is sometimes seen employing itself

262 in altering the existing laws

263 to conform them to the stipulations

264 in a new treaty;

265 and this may have possibly given birth

266 to the imagination,

267 that its co-operation was necessary

268 to the obligatory efficacy of the treaty.

269But this parliamentary interposition

270 proceeds from a different cause:

271 from the necessity of adjusting

272 a most artificial and intricate system

273 of revenue and commercial laws,

274 to the changes made in them

275 by the operation of the treaty;

276 and of adapting new provisions and precautions

277 to the new state of things,

278 to keep the machine from running into disorder.

279In this respect, therefore,

280 there is no comparison

281 between the intended power of the President

282 and the actual power of the British sovereign.

283The one can perform alone

284 what the other can do only

285 with the concurrence

286 of a branch of the legislature.

287It must be admitted,

288 that, in this instance,

289 the power of the federal Executive

290 would exceed that of any State Executive.

291But this arises naturally

292 from the sovereign power which relates to treaties.

293If the Confederacy were to be dissolved,

294 it would become a question,

295 whether the Executives of the several States

296 were not solely invested

297 with that delicate and important prerogative.

298The President is also to be authorized

299 to receive ambassadors and other public ministers.

300This, though it has been a rich theme of declamation,

301 is more a matter of dignity than of authority.

302It is a circumstance which will be without consequence

303 in the administration of the government;

304 and it was far more convenient

305 that it should be arranged in this manner,

306 than that there should be a necessity

307 of convening the legislature,

308 or one of its branches,

309 upon every arrival of a foreign minister,

310 though it were merely to take the place

311 of a departed predecessor.

312The President is to nominate, and,

313 WITH THE ADVICE AND CONSENT OF THE SENATE,

314 to appoint ambassadors and other public ministers,

315 judges of the Supreme Court,

316 and in general all officers of the United States

317 established by law,

318 and whose appointments are not otherwise

319 provided for

320 by the Constitution.

321The king of Great Britain

322 is emphatically and truly styled the fountain of honor.

323He not only appoints to all offices,

324 but can create offices.

325He can confer titles of nobility at pleasure;

326 and has the disposal of an immense number

327 of church preferments.

328There is evidently a great inferiority

329 in the power of the President, in this particular,

330 to that of the British king;

331 nor is it equal to that of the governor of New York,

332 if we are to interpret the meaning

333 of the constitution of the State

334 by the practice which has obtained under it.

335The power of appointment is with us lodged in a council,

336 composed of the governor

337 and four members of the Senate,

338 chosen by the Assembly.

339The governor CLAIMS, and has frequently EXERCISED,

340 the right of nomination,

341 and is ENTITLED to a casting vote in the appointment.

342If he really has the right of nominating,

343 his authority is in this respect

344 equal to that of the President,

345 and exceeds it in the article of the casting vote.

346In the national government,

347 if the Senate should be divided,

348 no appointment could be made;

349 in the government of New York,

350 if the council should be divided,

351 the governor can turn the scale,

352 and confirm his own nomination. 3

353If we compare the publicity

354 which must necessarily attend the mode of appointment

355 by the President

356 and an entire branch of the national legislature,

357 with the privacy in the mode of appointment

358 by the governor of New York,

359 closeted in a secret apartment with at most four,

360 and frequently with only two persons;

361 and if we at the same time consider

362 how much more easy it must be

363 to influence the small number

364 of which a council of appointment consists,

365 than the considerable number

366 of which the national Senate would consist,

367 we cannot hesitate to pronounce

368 that the power of the chief magistrate

369 of this State,

370 in the disposition of offices,

371 must, in practice, be greatly superior

372 to that of the Chief Magistrate of the Union.

373Hence it appears that, except as to

374 the concurrent authority

375 of the President in the article of treaties,

376 it would be difficult to determine

377 whether that magistrate would, in the aggregate,

378 possess more or less power

379 than the Governor of New York.

380And it appears yet more unequivocally,

381 that there is no pretense for the parallel

382 which has been attempted

383 between him and the king of Great Britain.

384But to render the contrast in this respect

385 still more striking,

386 it may be of use to throw the principal circumstances

387 of dissimilitude into a closer group.

388The President of the United States

389 would be an officer elected by the people

390 for FOUR years;

391 the king of Great Britain

392 is a perpetual and HEREDITARY prince.

393The one would be amenable

394 to personal punishment and disgrace;

395 the person of the other is sacred and inviolable.

396The one would have a QUALIFIED negative

397 upon the acts of the legislative body;

398 the other has an ABSOLUTE negative.

399The one would have a right to command

400 the military and naval forces of the nation;

401 the other, in addition to this right,

402 possesses that of DECLARING war,

403 and of RAISING and REGULATING fleets and armies

404 by his own authority.

405The one would have a concurrent power

406 with a branch of the legislature

407 in the formation of treaties;

408 the other is the SOLE POSSESSOR

409 of the power of making treaties.

410The one would have a like concurrent authority

411 in appointing to offices;

412 the other is the sole author of all appointments.

413The one can confer no privileges whatever;

414 the other can make denizens of aliens,

415 noblemen of commoners;

416 can erect corporations

417 with all the rights incident to corporate bodies.

418The one can prescribe no rules

419 concerning the commerce or currency of the nation;

420 the other is in several respects

421 the arbiter of commerce,

422 and in this capacity can establish

423 markets and fairs,

424 can regulate weights and measures,

425 can lay embargoes for a limited time,

426 can coin money,

427 can authorize or prohibit

428 the circulation of foreign coin.

429The one has no particle of spiritual jurisdiction;

430 the other is the supreme head and governor

431 of the national church!

432What answer shall we give to those

433 who would persuade us that things so unlike

434 resemble each other?

435The same that ought to be given to those

436 who tell us that a government,

437 the whole power of which would be

438 in the hands of the elective

439 and periodical servants

440 of the people,

441 is an aristocracy, a monarchy, and a despotism.

442PUBLIUS.

4431 A writer in a &ennsylvania paper,

444 under the signature of TAMONY,

445 has asserted that the king of Great Britain

446 oweshis prerogative as commander-in-chief

447 to an annual mutiny bill.

448The truth is, on the contrary,

449 that his prerogative, in this respect, is immenmorial,

450 and was only disputed,

451 "contrary to all reason and precedent,"

452 as Blackstone vol. i., page 262, expresses it,

453 by the Long Parliament of Charles I.

454 but by the statute the 13th of Charles II., chap. 6,

455 it was declared to be in the king alone,

456 for that the sole supreme government and command

457 of the militia within his Majesty's realms

458 and dominions,

459 and of all forces by sea and land,

460 and of all forts and places of strength,

461 EVER WAS AND IS the undoubted right of his Majesty

462 and his royal predecessors,

463 kings and queens of England,

464 and that both or either house of Parliament

465 cannot nor ought to pretend to the same.

4662 Vide Blackstone's "Commentaries,'' vol i., p. 257.

4673 Candor, however, demands an acknowledgment

468 that I do not think the claim of the governor

469 to a right of nomination well founded.

470Yet it is always justifiable

471 to reason from the practice of a government,

472 till its propriety has been

473 constitutionally questioned.

474And independent of this claim,

475 when we take into view the other considerations,

476 and pursue them through all their consequences,

477 we shall be inclined to draw much the same conclusion.