I PROCEED NOW to trace the real character of the executive branch as marked out in Article II of the Constitution, thereby exposing the unfair misrepresentations made regarding it.
The Executive Department Will Be Administered by a Single Person
The first thing to strike the attention is the executive authority is vested in a single magistrate – the President – with a few exceptions. For those who unfavorably compare the President to the royal sovereign of Great Britain, they could have as easily made a comparison to the sultan of Turkey, the khan of Tartary, the emperor of Rome, or the governor of New York.
For those who unfavorably compare the President to the royal sovereign of Great Britain, they could have as easily made a comparison to the sultan of Turkey, the khan of Tartary, the emperor of Rome, or the governor of New York.
A Four-Year Presidential Term Is Less Dangerous than a Three-Year New York Governorship
The President is to be elected for four years, and may be re-elected 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 the President and a monarch of Great Britain, presently George III, who is a hereditary monarch, possessing the crown as a patrimony descendible to his heirs forever.
There is a closer analogy between a monarch and a governor of New York, who is elected for three years, and is re-eligible without limitation or intermission.
If we consider it would require less time to establish a dangerous influence in a single State than establishing a like influence throughout the United States, we must conclude that a duration of four years for the President of the United States is a degree of permanency far less to be dreaded in that office than a three-year duration of a corresponding office in a single State.
The President May Be Impeached and Removed
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.
In contrast, the individual monarch of Great Britain is sacred and inviolable, for there is no constitutional tribunal to which he or she is amenable, and no punishment may be imposed without involving the crisis of a national revolution.
In this delicate and important circumstance of personal responsibility, the President of the United States would stand upon no better ground than a governor of New York, and upon worse ground than the governors of Maryland and Delaware.
The Veto Power Is Not Absolute, as It Is in Great Britain
The President of the United States has the power to return for reconsideration a bill passed by the Congress, and the bill so returned shall become a law following reconsideration if two thirds of both houses approve it.
The monarch of Great Britain, by contrast, 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.
The disuse may be wholly ascribed to the crown’s having found the means of substituting the power of influence to that of its authority, or the art of gaining a majority in one or the other of the two houses, to avoid the necessity of exerting its veto 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 monarch.
The limited veto power matches exactly the authority of the New York’s Council of Revision, of which the state’s governor is a constituent part.
The veto power of the President would exceed that of the governor of New York, who shares that power with a chancellor and judges, but it would be precisely the same as that of the governor of Massachusetts, whose constitution was the original the Constitutional Convention apparently copied.
In most of these particulars, the power of the President will resemble equally that of the monarch of Great Britain and of the governor of New York.
The President:
(1) is 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,
(2) has the power to grant reprieves and pardons for offenses against the United States, except in cases of impeachment;
(3) may recommend to the consideration of Congress such measures as he shall judge necessary and expedient;
(4) may convene both houses of Congress, or either of them, on extraordinary occasions,
(5) in cases of disagreement between houses with respect to the time of adjournment, may adjourn the Congress to such time as is thought proper to take care that the laws be faithfully executed, and
(6) shall commission all officers of the United States.
In most of these particulars, the power of the President will resemble equally that of the monarch of Great Britain and of the governor of New York.
I now turn to the most material points of difference.
The President’s Power to Call the Militia into Service Requires Legislation
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 United States.
The monarch of Great Britain and the governor of New York have at all times the entire command of all the militia within their several jurisdictions.
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 monarch of Great Britain, but in substance much inferior to it.
The President’s Power as Commander in Chief Is Limited by Congress
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 monarch 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 United States, while the power of the British monarch extends to the declaring of war and to the raising and regulating of fleets and armies, all of which the Constitution delegates to the Congress.
While the governor of New York is vested only with the command of its militia and navy, the constitutions of several other States expressly declare their governors to be commanders-in-chief of the army as well as the navy, and it may be argued that New Hampshire and Massachusetts confer larger powers upon their respective governors in this instance than could be claimed by a President of the United States.
The Power of the President to Pardon Is Less than that of a Governor of New York
The power of the President in respect to pardons extends to all cases except those of impeachment.
The governor of New York may pardon in all cases, including those of impeachment, except for treason and murder.
On a calculation of political consequences, is not the power of the governor 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 a pardon.
All conspiracies and plots against the government which have not matured into actual treason may be screened from punishment of every kind by a pardon.
If a governor of New York should be at the head of any such conspiracy, he or she could protect accomplices and adherents with an entire impunity, at least until the design had been ripened into actual hostility.
Although a President of the United States may pardon even treason when prosecuted in the ordinary course of law, the offender would have no shelter from the effects of impeachment and conviction.
It seems likely 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 should the scheme should miscarry.
And would this last expectation have any influence when the probability was computed that the person who was to afford that exemption (a treasonous President) might be incapacitated from affording the desired impunity?
The Power to Adjourn Congress Is Limited to Disputes concerning the Date of Adjournment
The President can only adjourn the national legislature in the single case of disagreement about the time of adjournment.
The British monarch may dissolve the Parliament it altogether, or prorogue it by discontinuing it without dissolving it.
The Governor of New York also may prorogue the legislature for a limited time, which is a power that may be employed to very important purposes in certain situations.
The President does not have the power to prorogue the Congress.
The Treaty Power of the President Requires Senate Approval
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 monarch of Great Britain, on the other hand, is the sole and absolute representative of the nation in all foreign transactions, and can of its own accord make treaties of peace, commerce, alliance, and of every other description, contrary to those who have insinuated that the monarch’s authority in this respect is inconclusive, and that conventions with foreign powers are subject to the revision and ratification of Parliament.
The suggestion is false, for as everyone acquainted with its Constitution knows, the prerogative of making treaties exists in the crown in its utmost plentitude, and compacts entered into by royal authority have the most complete legal validity and perfection independent of any other approval or 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 probably gave birth to the idea that its cooperation was necessary to the obligatory efficacy of the treaty.
But this parliamentary interposition proceeds from a different cause: the necessity of adjusting a most artificial and intricate system of revenue and commercial laws to the changes made to 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.
There is no comparison between the treaty power of the President and the actual power of the British monarch.
The monarch can perform alone what the President can do only with the concurrence of a branch of the legislature.
It must be admitted, that, in this instance, the power of the President exceeds that of any state executive, but this arises naturally from the sovereign power which relates to treaties.
If the Confederacy had been dissolved without adoption of Constitution, a question would have arisen whether the executives of the several States were not solely invested with that delicate and important prerogative.
There is no comparison between the treaty power of the President and the actual power of the British monarch. The monarch can perform alone what the President can do only with the concurrence of a branch of the legislature.
The Authorization to Receive Ambassadors Is Ordinary
The President is authorized to receive ambassadors and other public ministers.
Although this power has been a rich theme of declamation, it is more a matter of dignity than of authority.
It is a circumstance without consequence in the administration of the Federal government, and it was far more convenient to arrange in this manner to convene 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 Appointment Power Is Subject to Senate Approval
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. Art. II, § 2, ¶ 2.
The monarch of Great Britain, by comparison, is emphatically and truly styled the fountain of honor, not only appointing all officers, but creating new offices.
The monarch can confer titles of nobility at pleasure, and has the disposal of an immense number of church preferments.
There exists great inferiority in the power of the President to that of the British monarch in this particular; nor is it equal to that of the governor of New York, if we interpret the meaning of its constitution by the practice which has obtained under it.
The power of appointment in New York is lodged in a council, composed of the governor and four members of the State senate, chosen by the State assembly.
The governor claims, and has frequently exercised, the right of nomination, and is entitled to a casting vote in the appointment.
If I assume the governor actually possesses the right under law of nominating, the governor’s authority is in this respect equal to that of the President, and exceeds it due to the additional power of casting a vote.
In the Federal 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 with a confirming vote on the nominee.
If we further compare the publicity which must necessarily attend the mode of a national appointment requiring the concurrence of the President and the Senate, with the privacy in the mode of appointment of 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 a small number on a council of appointment than a considerable number in the Senate, I do not hesitate to pronounce that the power of the governor of New York to appoint officers must, in practice, be greatly superior to that of the President of the United States.
Any Attempt to Compare the President to the British Monarch Must Fail
Aside from treaty negotiations, it would be difficult to determine whether the President, in the aggregate, possesses more or less power than a governor of New York.
More unequivocally one can see no pretense for the parallel which has been attempted between the President and the monarch of Great Britain.
To render the contrast in this respect still more striking, I will throw the principal circumstances of dissimilitude into a closer group:
The President of the United States is an officer elected by the People for four years; the monarch of Great Britain is perpetual and hereditary.
One would be amenable to personal punishment and disgrace; the person of the other is sacred and inviolable.
One would have a qualified negative upon the acts of the legislative body; the other has an absolute negative.
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 or her own authority.
One would have a concurrent power with one branch of the legislature in the formation of treaties; and the other is the sole possessor of the power of making treaties.
One would have a like concurrent authority in appointing to offices; the other is the sole author of all appointments.
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.
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, regulate weights and measures, lay embargoes for a limited time, coin money, and authorize or prohibit the circulation of foreign coin.
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.
Hamilton