FEDERALIST No. 69

The Real Character of the Executive

From the New York Packet.

Friday, March 14, 1788.

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: gFirst. 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, gall 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

jurist2 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 &ennsylvania 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