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. 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 utmost 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 owes his prerogative as

 commander-in-chief to an annual mutiny bill. The truth is, on the

 contrary, that his prerogative, in this respect, is immemorial, 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.









THE FEDERALIST.