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 offences 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. (footnote
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 offence 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 (footnote 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 cooperation 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. (footnote 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 consist, 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 pretence 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.
Signed "PUBLIUS"
Footnotes Explained:
Footnote Number 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, Volume one, page 262,
expresses it, by the Long Parliament of Charles the first.; but by
the statute the 13th of Charles the second, chapter 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 Parliment cannot nor ought to pretend
to the same.
Footnote Number 2. Vide Blackstone's "Commentaries," volume one,
page 257.
Footnote Number 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.
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