The Federalist Papers
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.
FEDERALIST No. 70
The Executive Department Further Considered
From The Independent Journal. Saturday, March 15, 1788.
HAMILTON
To the People of the State of New York:
THERE is an idea, which is not without its advocates, that a vigorous
Executive is inconsistent with the genius of republican government. The
enlightened well-wishers to this species of government must at least
hope that the supposition is destitute of foundation; since they
can never admit its truth, without at the same time admitting the
condemnation of their own principles. Energy in the Executive is a
leading character in the definition of good government. It is essential
to the protection of the community against foreign attacks; it is
not less essential to the steady administration of the laws; to
the protection of property against those irregular and high-handed
combinations which sometimes interrupt the ordinary course of justice;
to the security of liberty against the enterprises and assaults of
ambition, of faction, and of anarchy. Every man the least conversant in
Roman history, knows how often that republic was obliged to take refuge
in the absolute power of a single man, under the formidable title of
Dictator, as well against the intrigues of ambitious individuals who
aspired to the tyranny, and the seditions of whole classes of the
community whose conduct threatened the existence of all government, as
against the invasions of external enemies who menaced the conquest and
destruction of Rome.
There can be no need, however, to multiply arguments or examples on this
head. A feeble Executive implies a feeble execution of the government.
A feeble execution is but another phrase for a bad execution; and a
government ill executed, whatever it may be in theory, must be, in
practice, a bad government.
Taking it for granted, therefore, that all men of sense will agree in
the necessity of an energetic Executive, it will only remain to inquire,
what are the ingredients which constitute this energy? How far can they
be combined with those other ingredients which constitute safety in the
republican sense? And how far does this combination characterize the
plan which has been reported by the convention?
The ingredients which constitute energy in the Executive are, first,
unity; secondly, duration; thirdly, an adequate provision for its
support; fourthly, competent powers.
The ingredients which constitute safety in the republican sense are,
first, a due dependence on the people, secondly, a due responsibility.
Those politicians and statesmen who have been the most celebrated for
the soundness of their principles and for the justice of their views,
have declared in favor of a single Executive and a numerous legislature.
They have with great propriety, considered energy as the most necessary
qualification of the former, and have regarded this as most applicable
to power in a single hand, while they have, with equal propriety,
considered the latter as best adapted to deliberation and wisdom, and
best calculated to conciliate the confidence of the people and to secure
their privileges and interests.
That unity is conducive to energy will not be disputed. Decision,
activity, secrecy, and despatch will generally characterize the