FEDERALIST No. 69

FEDERALIST No. 69

The Real Character of the Executive
From the New York Packet.
Friday, March 14, 1788.

HAMILTON

To the People of the State of New York:

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.

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,
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 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

1. A writer in a Pennsylvania paper, under the signature of TAMONY, has
asserted that the king of Great Britain oweshis prerogative as
commander-in-chief to an annual mutiny bill. The truth is, on the
contrary, that his prerogative, in this respect, is immenmorial, 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.