*** Index * Quote * Context ***
The Real Character of the Executive
To the People of the State of New York:
The first thing which strikes our attention is, that the
executive authority, with few exceptions, is to be vested in a
single magistrate. This will scarcely, however, be considered as a
point upon which any comparison can be grounded; for if, in this
particular, there be a resemblance to the king of Great Britain,
there is not less a resemblance to the Grand Seignior, to the khan
of Tartary, to the Man of the Seven Mountains, or to the governor of
New York.
That magistrate is to be elected for four years; and is to be
re-eligible as often as the people of the United States shall think
him worthy of their confidence. In these circumstances there is a
total dissimilitude between him and a king of Great Britain, who is
an hereditary monarch, possessing the crown as a patrimony
descendible to his heirs forever; but there is a close analogy
between him and a governor of New York, who is elected for three
years, and is re-eligible without limitation or intermission. If we
consider how much less time would be requisite for establishing a
dangerous influence in a single State, than for establishing a like
influence throughout the United States, we must conclude that a
duration of four years for the Chief Magistrate of the Union is a
degree of permanency far less to be dreaded in that office, than a
duration of three years for a corresponding office in a single State.
The President of the United States would be liable to be
impeached, tried, and, upon conviction of treason, bribery, or other
high crimes or misdemeanors, removed from office; and would
afterwards be liable to prosecution and punishment in the ordinary
course of law. The person of the king of Great Britain is sacred
and inviolable; there is no constitutional tribunal to which he is
amenable; no punishment to which he can be subjected without
involving the crisis of a national revolution. In this delicate and
important circumstance of personal responsibility, the President of
Confederated America would stand upon no better ground than a
governor of New York, and upon worse ground than the governors of
Maryland and Delaware.
The President of the United States is to have power to return a
bill, which shall have passed the two branches of the legislature,
for reconsideration; and the bill so returned is to become a law,
if, upon that reconsideration, it be approved by two thirds of both
houses. The king of Great Britain, on his part, has an absolute
negative upon the acts of the two houses of Parliament. The disuse
of that power for a considerable time past does not affect the
reality of its existence; and is to be ascribed wholly to the
crown's having found the means of substituting influence to
authority, or the art of gaining a majority in one or the other of
the two houses, to the necessity of exerting a prerogative which
could seldom be exerted without hazarding some degree of national
agitation. The qualified negative of the President differs widely
from this absolute negative of the British sovereign; and tallies
exactly with the revisionary authority of the council of revision of
this State, of which the governor is a constituent part. In this
respect the power of the President would exceed that of the governor
of New York, because the former would possess, singly, what the
latter shares with the chancellor and judges; but it would be
precisely the same with that of the governor of Massachusetts, whose
constitution, as to this article, seems to have been the original
from which the convention have copied.
The President is to be the ``commander-in-chief of the army and
navy of the United States, and of the militia of the several States,
when called into the actual service of the United States. He is to
have power to grant reprieves and pardons for offenses against the
United States, execpt in cases of impeachment; to recommend to the
consideration of Congress such measures as he shall judge necessary
and expedient; to convene, on extraordinary occasions, both houses
of the legislature, or either of them, and, in case of disagreement
between them with respect to the time of adjournment, to adjourn
them to such time as he shall think proper; to take care that the
laws be faithfully executed; and to commission all officers of the
United States.'' In most of these particulars, the power of the
President will resemble equally that of the king of Great Britain
and of the governor of New York. The most material points of
difference are these: First. The President will have only the
occasional command of such part of the militia of the nation as by
legislative provision may be called into the actual service of the
Union. The king of Great Britain and the governor of New York have
at all times the entire command of all the militia within their
several jurisdictions. In this article, therefore, the power of the
President would be inferior to that of either the monarch or the
governor. Secondly. The President is to be commander-in-chief
of the army and navy of the United States. In this respect his
authority would be nominally the same with that of the king of Great
Britain, but in substance much inferior to it. It would amount to
nothing more than the supreme command and direction of the military
and naval forces, as first General and admiral of the Confederacy;
while that of the British king extends to the declaring of war and
to the raising and regulating of fleets and armies, all which, by
the Constitution under consideration, would appertain to the
legislature.[1] The governor of New York, on the other hand, is
by the constitution of the State vested only with the command of its
militia and navy. But the constitutions of several of the States
expressly declare their governors to be commanders-in-chief, as well
of the army as navy; and it may well be a question, whether those
of New Hampshire and Massachusetts, in particular, do not, in this
instance, confer larger powers upon their respective governors, than
could be claimed by a President of the United States. Thirdly.
The power of the President, in respect to pardons, would extend to
all cases, except those of impeachment. The governor of New York
may pardon in all cases, even in those of impeachment, except for
treason and murder. Is not the power of the governor, in this
article, on a calculation of political consequences, greater than
that of the President? All conspiracies and plots against the
government, which have not been matured into actual treason, may be
screened from punishment of every kind, by the interposition of the
prerogative of pardoning. If a governor of New York, therefore,
should be at the head of any such conspiracy, until the design had
been ripened into actual hostility he could insure his accomplices
and adherents an entire impunity. A President of the Union, on the
other hand, though he may even pardon treason, when prosecuted in
the ordinary course of law, could shelter no offender, in any
degree, from the effects of impeachment and conviction. Would not
the prospect of a total indemnity for all the preliminary steps be a
greater temptation to undertake and persevere in an enterprise
against the public liberty, than the mere prospect of an exemption
from death and confiscation, if the final execution of the design,
upon an actual appeal to arms, should miscarry? Would this last
expectation have any influence at all, when the probability was
computed, that the person who was to afford that exemption might
himself be involved in the consequences of the measure, and might be
incapacitated by his agency in it from affording the desired
impunity? The better to judge of this matter, it will be necessary
to recollect, that, by the proposed Constitution, the offense of
treason is limited ``to levying war upon the United States, and
adhering to their enemies, giving them aid and comfort''; and that
by the laws of New York it is confined within similar bounds.
Fourthly. The President can only adjourn the national legislature
in the single case of disagreement about the time of adjournment.
The British monarch may prorogue or even dissolve the Parliament.
The governor of New York may also prorogue the legislature of this
State for a limited time; a power which, in certain situations, may
be employed to very important purposes.
The President is to have power, with the advice and consent of
the Senate, to make treaties, provided two thirds of the senators
present concur. The king of Great Britain is the sole and absolute
representative of the nation in all foreign transactions. He can of
his own accord make treaties of peace, commerce, alliance, and of
every other description. It has been insinuated, that his authority
in this respect is not conclusive, and that his conventions with
foreign powers are subject to the revision, and stand in need of the
ratification, of Parliament. But I believe this doctrine was never
heard of, until it was broached upon the present occasion. Every
jurist[2] of that kingdom, and every other man acquainted with its
Constitution, knows, as an established fact, that the prerogative of
making treaties exists in the crown in its utomst 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.
Notes:
Hamilton From the New York Packet.
Friday, March 14, 1788.
I PROCEED now to trace the real characters of the proposed
Executive, as they are marked out in the plan of the convention.
This will serve to place in a strong light the unfairness of the
representations which have been made in regard to it.