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.