prompt:
Chapter: The Powers of the Senate

From The Independent Journal. Wednesday, March 5, 1788.

JAY

To the People of the State of New York:

IT IS a just and not a new observation, that enemies to particular
persons, and opponents to particular measures, seldom confine their
censures to such things only in either as are worthy of blame. Unless on
this principle, it is difficult to explain the motives of their conduct,
who condemn the proposed Constitution in the aggregate, and treat with
severity some of the most unexceptionable articles in it.

The second section gives power to the President, "BY AND WITH THE ADVICE
AND CONSENT OF THE SENATE, TO MAKE TREATIES, PROVIDED TWO THIRDS OF THE
SENATORS PRESENT CONCUR."

The power of making treaties is an important one, especially as it
relates to war, peace, and commerce; and it should not be delegated but
in such a mode, and with such precautions, as will afford the highest
security that it will be exercised by men the best qualified for the
purpose, and in the manner most conducive to the public good. The
convention appears to have been attentive to both these points: they
have directed the President to be chosen by select bodies of electors,
to be deputed by the people for that express purpose; and they have
committed the appointment of senators to the State legislatures. This
mode has, in such cases, vastly the advantage of elections by the people
in their collective capacity, where the activity of party zeal, taking
the advantage of the supineness, the ignorance, and the hopes and fears
of the unwary and interested, often places men in office by the votes of
a small proportion of the electors.

As the select assemblies for choosing the President, as well as the
State legislatures who appoint the senators, will in general be composed
of the most enlightened and respectable citizens, there is reason to
presume that their attention and their votes will be directed to those
men only who have become the most distinguished by their abilities and
virtue, and in whom the people perceive just grounds for confidence.
The Constitution manifests very particular attention to this object. By
excluding men under thirty-five from the first office, and those under
thirty from the second, it confines the electors to men of whom the
people have had time to form a judgment, and with respect to whom they
will not be liable to be deceived by those brilliant appearances of
genius and patriotism, which, like transient meteors, sometimes mislead
as well as dazzle. If the observation be well founded, that wise kings
will always be served by able ministers, it is fair to argue, that as an
assembly of select electors possess, in a greater degree than kings,
the means of extensive and accurate information relative to men and
characters, so will their appointments bear at least equal marks of
discretion and discernment. The inference which naturally results from
these considerations is this, that the President and senators so chosen
will always be of the number of those who best understand our national
interests, whether considered in relation to the several States or to
foreign nations, who are best able to promote those interests, and whose
reputation for integrity inspires and merits confidence. With such men
the power of making treaties may be safely lodged.

Although the absolute necessity of system, in the conduct of any
business, is universally known and acknowledged, yet the high importance
of it in national affairs has not yet become sufficiently impressed on
the public mind. They who wish to commit the power under consideration
to a popular assembly, composed of members constantly coming and
going in quick succession, seem not to recollect that such a body must
necessarily be inadequate to the attainment of those great objects,
which require to be steadily contemplated in all their relations and
circumstances, and which can only be approached and achieved by measures
which not only talents, but also exact information, and often much time,
are necessary to concert and to execute. It was wise, therefore, in the
convention to provide, not only that the power of making treaties should
be committed to able and honest men, but also that they should continue
in place a sufficient time to become perfectly acquainted with our
national concerns, and to form and introduce a system for the
management of them. The duration prescribed is such as will give them
an opportunity of greatly extending their political information, and
of rendering their accumulating experience more and more beneficial
to their country. Nor has the convention discovered less prudence in
providing for the frequent elections of senators in such a way as to
obviate the inconvenience of periodically transferring those great
affairs entirely to new men; for by leaving a considerable residue
of the old ones in place, uniformity and order, as well as a constant
succession of official information will be preserved.

There are a few who will not admit that the affairs of trade and
navigation should be regulated by a system cautiously formed and
steadily pursued; and that both our treaties and our laws should
correspond with and be made to promote it. It is of much consequence
that this correspondence and conformity be carefully maintained; and
they who assent to the truth of this position will see and confess that
it is well provided for by making concurrence of the Senate necessary
both to treaties and to laws.

It seldom happens in the negotiation of treaties, of whatever nature,
but that perfect SECRECY and immediate DESPATCH are sometimes requisite.
These are cases where the most useful intelligence may be obtained,
if the persons possessing it can be relieved from apprehensions of
discovery. Those apprehensions will operate on those persons whether
they are actuated by mercenary or friendly motives; and there doubtless
are many of both descriptions, who would rely on the secrecy of the
President, but who would not confide in that of the Senate, and still
less in that of a large popular Assembly. The convention have done
well, therefore, in so disposing of the power of making treaties, that
although the President must, in forming them, act by the advice and
consent of the Senate, yet he will be able to manage the business of
intelligence in such a manner as prudence may suggest.

They who have turned their attention to the affairs of men, must have
perceived that there are tides in them; tides very irregular in their
duration, strength, and direction, and seldom found to run twice exactly
in the same manner or measure. To discern and to profit by these tides
in national affairs is the business of those who preside over them; and
they who have had much experience on this head inform us, that there
frequently are occasions when days, nay, even when hours, are precious.
The loss of a battle, the death of a prince, the removal of a minister,
or other circumstances intervening to change the present posture and
aspect of affairs, may turn the most favorable tide into a course
opposite to our wishes. As in the field, so in the cabinet, there are
moments to be seized as they pass, and they who preside in either should
be left in capacity to improve them. So often and so essentially have
we heretofore suffered from the want of secrecy and despatch, that the
Constitution would have been inexcusably defective, if no attention had
been paid to those objects. Those matters which in negotiations usually
require the most secrecy and the most despatch, are those preparatory
and auxiliary measures which are not otherwise important in a national
view, than as they tend to facilitate the attainment of the objects of
the negotiation. For these, the President will find no difficulty to
provide; and should any circumstance occur which requires the advice and
consent of the Senate, he may at any time convene them. Thus we see that
the Constitution provides that our negotiations for treaties shall
have every advantage which can be derived from talents, information,
integrity, and deliberate investigations, on the one hand, and from
secrecy and despatch on the other.

But to this plan, as to most others that have ever appeared, objections
are contrived and urged.

Some are displeased with it, not on account of any errors or defects in
it, but because, as the treaties, when made, are to have the force
of laws, they should be made only by men invested with legislative
authority. These gentlemen seem not to consider that the judgments of
our courts, and the commissions constitutionally given by our governor,
are as valid and as binding on all persons whom they concern, as the
laws passed by our legislature. All constitutional acts of power,
whether in the executive or in the judicial department, have as much
legal validity and obligation as if they proceeded from the legislature;
and therefore, whatever name be given to the power of making treaties,
or however obligatory they may be when made, certain it is, that the
people may, with much propriety, commit the power to a distinct body
from the legislature, the executive, or the judicial. It surely does
not follow, that because they have given the power of making laws to the
legislature, that therefore they should likewise give them the power to
do every other act of sovereignty by which the citizens are to be bound
and affected.

Others, though content that treaties should be made in the mode
proposed, are averse to their being the SUPREME laws of the land. They
insist, and profess to believe, that treaties like acts of assembly,
should be repealable at pleasure. This idea seems to be new and peculiar
to this country, but new errors, as well as new truths, often appear.
These gentlemen would do well to reflect that a treaty is only another
name for a bargain, and that it would be impossible to find a nation
who would make any bargain with us, which should be binding on them
ABSOLUTELY, but on us only so long and so far as we may think proper to
be bound by it. They who make laws may, without doubt, amend or repeal
them; and it will not be disputed that they who make treaties may alter
or cancel them; but still let us not forget that treaties are made, not
by only one of the contracting parties, but by both; and consequently,
that as the consent of both was essential to their formation at first,
so must it ever afterwards be to alter or cancel them. The proposed
Constitution, therefore, has not in the least extended the obligation
of treaties. They are just as binding, and just as far beyond the lawful
reach of legislative acts now, as they will be at any future period, or
under any form of government.

However useful jealousy may be in republics, yet when like bile in
the natural, it abounds too much in the body politic, the eyes of both
become very liable to be deceived by the delusive appearances which that
malady casts on surrounding objects. From this cause, probably, proceed
the fears and apprehensions of some, that the President and Senate may
make treaties without an equal eye to the interests of all the States.
Others suspect that two thirds will oppress the remaining third, and
ask whether those gentlemen are made sufficiently responsible for their
conduct; whether, if they act corruptly, they can be punished; and
if they make disadvantageous treaties, how are we to get rid of those
treaties?

As all the States are equally represented in the Senate, and by men
the most able and the most willing to promote the interests of their
constituents, they will all have an equal degree of influence in that
body, especially while they continue to be careful in appointing proper
persons, and to insist on their punctual attendance. In proportion as
the United States assume a national form and a national character, so
will the good of the whole be more and more an object of attention, and
the government must be a weak one indeed, if it should forget that the
good of the whole can only be promoted by advancing the good of each
of the parts or members which compose the whole. It will not be in the
power of the President and Senate to make any treaties by which they and
their families and estates will not be equally bound and affected with
the rest of the community; and, having no private interests distinct
from that of the nation, they will be under no temptations to neglect
the latter.

As to corruption, the case is not supposable. He must either have been
very unfortunate in his intercourse with the world, or possess a heart
very susceptible of such impressions, who can think it probable that
the President and two thirds of the Senate will ever be capable of
such unworthy conduct. The idea is too gross and too invidious to be
entertained. But in such a case, if it should ever happen, the treaty so
obtained from us would, like all other fraudulent contracts, be null and
void by the law of nations.

With respect to their responsibility, it is difficult to conceive how
it could be increased. Every consideration that can influence the
human mind, such as honor, oaths, reputations, conscience, the love
of country, and family affections and attachments, afford security for
their fidelity. In short, as the Constitution has taken the utmost care
that they shall be men of talents and integrity, we have reason to be
persuaded that the treaties they make will be as advantageous as, all
circumstances considered, could be made; and so far as the fear of
punishment and disgrace can operate, that motive to good behavior is
amply afforded by the article on the subject of impeachments.

PUBLIUS

Q: Can you write an appropriate summary of the above paragraphs?
A:

completion: In this paper, Jay defends the provision in the Constitution granting power to the president to make treaties with the consent of two thirds of the Senate. He argues that it was important to give this power to the president and Senate, which he argues will consist of the "most enlightened and respectable citizens," given the minimum age requirements for their office, as well as other factors. Jay contends that it is better to trust these responsibilities to the Senate than the House since the members of the former are elected less frequently and to longer terms. This allows them to acquire the extensive knowledge necessary for handling such grave matters as treaties with other nations. Another advantage of this system, according to Jay, is that it allows the president to conduct negotiations in secrecy and then, at an appropriate point, get the advice of the senate. Jay responds to objections that the treaties ought to be amendable by legislative acts by arguing that treaties are fundamentally different from regular laws. They must be binding on the American people and not subject to change by a mere act of Congress. Otherwise, other nations may not be willing to enter into treaties with the US.


prompt:
Chapter: The Powers of the Senate Continued

From the New York Packet. Friday, March 7, 1788.

HAMILTON

To the People of the State of New York:

THE remaining powers which the plan of the convention allots to the
Senate, in a distinct capacity, are comprised in their participation
with the executive in the appointment to offices, and in their judicial
character as a court for the trial of impeachments. As in the business
of appointments the executive will be the principal agent, the
provisions relating to it will most properly be discussed in the
examination of that department. We will, therefore, conclude this head
with a view of the judicial character of the Senate.

A well-constituted court for the trial of impeachments is an object not
more to be desired than difficult to be obtained in a government wholly
elective. The subjects of its jurisdiction are those offenses which
proceed from the misconduct of public men, or, in other words, from the
abuse or violation of some public trust. They are of a nature which may
with peculiar propriety be denominated POLITICAL, as they relate chiefly
to injuries done immediately to the society itself. The prosecution of
them, for this reason, will seldom fail to agitate the passions of the
whole community, and to divide it into parties more or less friendly or
inimical to the accused. In many cases it will connect itself with
the pre-existing factions, and will enlist all their animosities,
partialities, influence, and interest on one side or on the other; and
in such cases there will always be the greatest danger that the decision
will be regulated more by the comparative strength of parties, than by
the real demonstrations of innocence or guilt.

The delicacy and magnitude of a trust which so deeply concerns
the political reputation and existence of every man engaged in the
administration of public affairs, speak for themselves. The difficulty
of placing it rightly, in a government resting entirely on the basis
of periodical elections, will as readily be perceived, when it is
considered that the most conspicuous characters in it will, from that
circumstance, be too often the leaders or the tools of the most cunning
or the most numerous faction, and on this account, can hardly be
expected to possess the requisite neutrality towards those whose conduct
may be the subject of scrutiny.

The convention, it appears, thought the Senate the most fit depositary
of this important trust. Those who can best discern the intrinsic
difficulty of the thing, will be least hasty in condemning that opinion,
and will be most inclined to allow due weight to the arguments which may
be supposed to have produced it.

What, it may be asked, is the true spirit of the institution itself?
Is it not designed as a method of NATIONAL INQUEST into the conduct
of public men? If this be the design of it, who can so properly be
the inquisitors for the nation as the representatives of the nation
themselves? It is not disputed that the power of originating the
inquiry, or, in other words, of preferring the impeachment, ought to be
lodged in the hands of one branch of the legislative body. Will not the
reasons which indicate the propriety of this arrangement strongly plead
for an admission of the other branch of that body to a share of the
inquiry? The model from which the idea of this institution has been
borrowed, pointed out that course to the convention. In Great Britain it
is the province of the House of Commons to prefer the impeachment,
and of the House of Lords to decide upon it. Several of the State
constitutions have followed the example. As well the latter, as the
former, seem to have regarded the practice of impeachments as a bridle
in the hands of the legislative body upon the executive servants of the
government. Is not this the true light in which it ought to be regarded?

Where else than in the Senate could have been found a tribunal
sufficiently dignified, or sufficiently independent? What other body
would be likely to feel CONFIDENCE ENOUGH IN ITS OWN SITUATION, to
preserve, unawed and uninfluenced, the necessary impartiality between an
INDIVIDUAL accused, and the REPRESENTATIVES OF THE PEOPLE, HIS ACCUSERS?

Could the Supreme Court have been relied upon as answering this
description? It is much to be doubted, whether the members of that
tribunal would at all times be endowed with so eminent a portion of
fortitude, as would be called for in the execution of so difficult a
task; and it is still more to be doubted, whether they would possess the
degree of credit and authority, which might, on certain occasions, be
indispensable towards reconciling the people to a decision that
should happen to clash with an accusation brought by their immediate
representatives. A deficiency in the first, would be fatal to the
accused; in the last, dangerous to the public tranquillity. The hazard
in both these respects, could only be avoided, if at all, by rendering
that tribunal more numerous than would consist with a reasonable
attention to economy. The necessity of a numerous court for the trial of
impeachments, is equally dictated by the nature of the proceeding. This
can never be tied down by such strict rules, either in the delineation
of the offense by the prosecutors, or in the construction of it by the
judges, as in common cases serve to limit the discretion of courts in
favor of personal security. There will be no jury to stand between the
judges who are to pronounce the sentence of the law, and the party
who is to receive or suffer it. The awful discretion which a court of
impeachments must necessarily have, to doom to honor or to infamy
the most confidential and the most distinguished characters of the
community, forbids the commitment of the trust to a small number of
persons.

These considerations seem alone sufficient to authorize a conclusion,
that the Supreme Court would have been an improper substitute for
the Senate, as a court of impeachments. There remains a further
consideration, which will not a little strengthen this conclusion. It
is this: The punishment which may be the consequence of conviction upon
impeachment, is not to terminate the chastisement of the offender.
After having been sentenced to a perpetual ostracism from the esteem and
confidence, and honors and emoluments of his country, he will still
be liable to prosecution and punishment in the ordinary course of law.
Would it be proper that the persons who had disposed of his fame, and
his most valuable rights as a citizen in one trial, should, in another
trial, for the same offense, be also the disposers of his life and
his fortune? Would there not be the greatest reason to apprehend, that
error, in the first sentence, would be the parent of error in the second
sentence? That the strong bias of one decision would be apt to overrule
the influence of any new lights which might be brought to vary the
complexion of another decision? Those who know anything of human nature,
will not hesitate to answer these questions in the affirmative; and will
be at no loss to perceive, that by making the same persons judges in
both cases, those who might happen to be the objects of prosecution
would, in a great measure, be deprived of the double security intended
them by a double trial. The loss of life and estate would often be
virtually included in a sentence which, in its terms, imported nothing
more than dismission from a present, and disqualification for a future,
office. It may be said, that the intervention of a jury, in the second
instance, would obviate the danger. But juries are frequently influenced
by the opinions of judges. They are sometimes induced to find special
verdicts, which refer the main question to the decision of the court.
Who would be willing to stake his life and his estate upon the verdict
of a jury acting under the auspices of judges who had predetermined his
guilt?

Would it have been an improvement of the plan, to have united the
Supreme Court with the Senate, in the formation of the court of
impeachments? This union would certainly have been attended with several
advantages; but would they not have been overbalanced by the signal
disadvantage, already stated, arising from the agency of the same judges
in the double prosecution to which the offender would be liable? To a
certain extent, the benefits of that union will be obtained from making
the chief justice of the Supreme Court the president of the court of
impeachments, as is proposed to be done in the plan of the convention;
while the inconveniences of an entire incorporation of the former into
the latter will be substantially avoided. This was perhaps the prudent
mean. I forbear to remark upon the additional pretext for clamor against
the judiciary, which so considerable an augmentation of its authority
would have afforded.

Would it have been desirable to have composed the court for the trial of
impeachments, of persons wholly distinct from the other departments
of the government? There are weighty arguments, as well against, as
in favor of, such a plan. To some minds it will not appear a trivial
objection, that it could tend to increase the complexity of the
political machine, and to add a new spring to the government, the
utility of which would at best be questionable. But an objection which
will not be thought by any unworthy of attention, is this: a court
formed upon such a plan, would either be attended with a heavy
expense, or might in practice be subject to a variety of casualties and
inconveniences. It must either consist of permanent officers, stationary
at the seat of government, and of course entitled to fixed and regular
stipends, or of certain officers of the State governments to be called
upon whenever an impeachment was actually depending. It will not be easy
to imagine any third mode materially different, which could rationally
be proposed. As the court, for reasons already given, ought to be
numerous, the first scheme will be reprobated by every man who can
compare the extent of the public wants with the means of supplying them.
The second will be espoused with caution by those who will seriously
consider the difficulty of collecting men dispersed over the whole
Union; the injury to the innocent, from the procrastinated determination
of the charges which might be brought against them; the advantage to the
guilty, from the opportunities which delay would afford to intrigue
and corruption; and in some cases the detriment to the State, from the
prolonged inaction of men whose firm and faithful execution of their
duty might have exposed them to the persecution of an intemperate or
designing majority in the House of Representatives. Though this
latter supposition may seem harsh, and might not be likely often to be
verified, yet it ought not to be forgotten that the demon of faction
will, at certain seasons, extend his sceptre over all numerous bodies of
men.

But though one or the other of the substitutes which have been examined,
or some other that might be devised, should be thought preferable to
the plan in this respect, reported by the convention, it will not follow
that the Constitution ought for this reason to be rejected. If mankind
were to resolve to agree in no institution of government, until every
part of it had been adjusted to the most exact standard of perfection,
society would soon become a general scene of anarchy, and the world
a desert. Where is the standard of perfection to be found? Who will
undertake to unite the discordant opinions of a whole community, in the
same judgment of it; and to prevail upon one conceited projector to
renounce his INFALLIBLE criterion for the FALLIBLE criterion of his
more CONCEITED NEIGHBOR? To answer the purpose of the adversaries of the
Constitution, they ought to prove, not merely that particular provisions
in it are not the best which might have been imagined, but that the plan
upon the whole is bad and pernicious.

PUBLIUS

Q: Can you write an appropriate summary of the above paragraphs?
A:

completion: Hamilton defends the use of the Senate as a court of impeachment for public officials impeached by the House of Representatives. He argues that there are certainly disadvantages to having a political institution serve as judges given the significant potential for partiality. However, the Senate is the best option available. The Supreme Court would be inadequate due to its small size and the fact that an official, once removed from office, might then find himself judged in criminal court by the same judges who removed him from office. Hamilton also dismisses the idea of having a separate institution or collection of officials to serve as a court of impeachment. He warns that such a body would be too expensive.


prompt:
Chapter: Objections to the Power of the Senate To Set as a Court for Impeachments
Further Considered.

From The Independent Journal. Saturday, March 8, 1788.

HAMILTON

To the People of the State of New York:

A REVIEW of the principal objections that have appeared against the
proposed court for the trial of impeachments, will not improbably
eradicate the remains of any unfavorable impressions which may still
exist in regard to this matter.

The FIRST of these objections is, that the provision in question
confounds legislative and judiciary authorities in the same body, in
violation of that important and well-established maxim which requires a
separation between the different departments of power. The true meaning
of this maxim has been discussed and ascertained in another place, and
has been shown to be entirely compatible with a partial intermixture of
those departments for special purposes, preserving them, in the main,
distinct and unconnected. This partial intermixture is even, in some
cases, not only proper but necessary to the mutual defense of the
several members of the government against each other. An absolute or
qualified negative in the executive upon the acts of the legislative
body, is admitted, by the ablest adepts in political science, to be an
indispensable barrier against the encroachments of the latter upon the
former. And it may, perhaps, with no less reason be contended, that the
powers relating to impeachments are, as before intimated, an essential
check in the hands of that body upon the encroachments of the executive.
The division of them between the two branches of the legislature,
assigning to one the right of accusing, to the other the right of
judging, avoids the inconvenience of making the same persons both
accusers and judges; and guards against the danger of persecution, from
the prevalency of a factious spirit in either of those branches. As
the concurrence of two thirds of the Senate will be requisite to
a condemnation, the security to innocence, from this additional
circumstance, will be as complete as itself can desire.

It is curious to observe, with what vehemence this part of the plan is
assailed, on the principle here taken notice of, by men who profess to
admire, without exception, the constitution of this State; while that
constitution makes the Senate, together with the chancellor and judges
of the Supreme Court, not only a court of impeachments, but the
highest judicatory in the State, in all causes, civil and criminal. The
proportion, in point of numbers, of the chancellor and judges to the
senators, is so inconsiderable, that the judiciary authority of New
York, in the last resort, may, with truth, be said to reside in its
Senate. If the plan of the convention be, in this respect, chargeable
with a departure from the celebrated maxim which has been so often
mentioned, and seems to be so little understood, how much more culpable
must be the constitution of New York?(1)

A SECOND objection to the Senate, as a court of impeachments, is, that
it contributes to an undue accumulation of power in that body, tending
to give to the government a countenance too aristocratic. The Senate, it
is observed, is to have concurrent authority with the Executive in the
formation of treaties and in the appointment to offices: if, say the
objectors, to these prerogatives is added that of deciding in all
cases of impeachment, it will give a decided predominancy to senatorial
influence. To an objection so little precise in itself, it is not easy
to find a very precise answer. Where is the measure or criterion to
which we can appeal, for determining what will give the Senate too much,
too little, or barely the proper degree of influence? Will it not be
more safe, as well as more simple, to dismiss such vague and uncertain
calculations, to examine each power by itself, and to decide, on general
principles, where it may be deposited with most advantage and least
inconvenience?

If we take this course, it will lead to a more intelligible, if not to
a more certain result. The disposition of the power of making treaties,
which has obtained in the plan of the convention, will, then, if I
mistake not, appear to be fully justified by the considerations stated
in a former number, and by others which will occur under the next head
of our inquiries. The expediency of the junction of the Senate with
the Executive, in the power of appointing to offices, will, I trust, be
placed in a light not less satisfactory, in the disquisitions under the
same head. And I flatter myself the observations in my last paper must
have gone no inconsiderable way towards proving that it was not easy, if
practicable, to find a more fit receptacle for the power of determining
impeachments, than that which has been chosen. If this be truly the
case, the hypothetical dread of the too great weight of the Senate ought
to be discarded from our reasonings.

But this hypothesis, such as it is, has already been refuted in the
remarks applied to the duration in office prescribed for the senators.
It was by them shown, as well on the credit of historical examples,
as from the reason of the thing, that the most POPULAR branch of every
government, partaking of the republican genius, by being generally the
favorite of the people, will be as generally a full match, if not an
overmatch, for every other member of the Government.

But independent of this most active and operative principle, to secure
the equilibrium of the national House of Representatives, the plan of
the convention has provided in its favor several important counterpoises
to the additional authorities to be conferred upon the Senate. The
exclusive privilege of originating money bills will belong to the
House of Representatives. The same house will possess the sole right of
instituting impeachments: is not this a complete counterbalance to that
of determining them? The same house will be the umpire in all elections
of the President, which do not unite the suffrages of a majority of
the whole number of electors; a case which it cannot be doubted will
sometimes, if not frequently, happen. The constant possibility of the
thing must be a fruitful source of influence to that body. The more it
is contemplated, the more important will appear this ultimate though
contingent power, of deciding the competitions of the most illustrious
citizens of the Union, for the first office in it. It would not perhaps
be rash to predict, that as a mean of influence it will be found to
outweigh all the peculiar attributes of the Senate.

A THIRD objection to the Senate as a court of impeachments, is drawn
from the agency they are to have in the appointments to office. It is
imagined that they would be too indulgent judges of the conduct of men,
in whose official creation they had participated. The principle of this
objection would condemn a practice, which is to be seen in all the State
governments, if not in all the governments with which we are acquainted:
I mean that of rendering those who hold offices during pleasure,
dependent on the pleasure of those who appoint them. With equal
plausibility might it be alleged in this case, that the favoritism of
the latter would always be an asylum for the misbehavior of the former.
But that practice, in contradiction to this principle, proceeds upon
the presumption, that the responsibility of those who appoint, for the
fitness and competency of the persons on whom they bestow their choice,
and the interest they will have in the respectable and prosperous
administration of affairs, will inspire a sufficient disposition to
dismiss from a share in it all such who, by their conduct, shall have
proved themselves unworthy of the confidence reposed in them. Though
facts may not always correspond with this presumption, yet if it be,
in the main, just, it must destroy the supposition that the Senate, who
will merely sanction the choice of the Executive, should feel a bias,
towards the objects of that choice, strong enough to blind them to
the evidences of guilt so extraordinary, as to have induced the
representatives of the nation to become its accusers.

If any further arguments were necessary to evince the improbability of
such a bias, it might be found in the nature of the agency of the Senate
in the business of appointments. It will be the office of the President
to NOMINATE, and, with the advice and consent of the Senate, to APPOINT.
There will, of course, be no exertion of CHOICE on the part of the
Senate. They may defeat one choice of the Executive, and oblige him to
make another; but they cannot themselves CHOOSE--they can only ratify
or reject the choice of the President. They might even entertain a
preference to some other person, at the very moment they were assenting
to the one proposed, because there might be no positive ground of
opposition to him; and they could not be sure, if they withheld their
assent, that the subsequent nomination would fall upon their own
favorite, or upon any other person in their estimation more meritorious
than the one rejected. Thus it could hardly happen, that the majority
of the Senate would feel any other complacency towards the object of an
appointment than such as the appearances of merit might inspire, and the
proofs of the want of it destroy.

A FOURTH objection to the Senate in the capacity of a court of
impeachments, is derived from its union with the Executive in the
power of making treaties. This, it has been said, would constitute the
senators their own judges, in every case of a corrupt or perfidious
execution of that trust. After having combined with the Executive
in betraying the interests of the nation in a ruinous treaty, what
prospect, it is asked, would there be of their being made to suffer the
punishment they would deserve, when they were themselves to decide upon
the accusation brought against them for the treachery of which they have
been guilty?

This objection has been circulated with more earnestness and with
greater show of reason than any other which has appeared against this
part of the plan; and yet I am deceived if it does not rest upon an
erroneous foundation.

The security essentially intended by the Constitution against corruption
and treachery in the formation of treaties, is to be sought for in the
numbers and characters of those who are to make them. The JOINT AGENCY
of the Chief Magistrate of the Union, and of two thirds of the members
of a body selected by the collective wisdom of the legislatures of the
several States, is designed to be the pledge for the fidelity of
the national councils in this particular. The convention might with
propriety have meditated the punishment of the Executive, for a
deviation from the instructions of the Senate, or a want of integrity in
the conduct of the negotiations committed to him; they might also have
had in view the punishment of a few leading individuals in the Senate,
who should have prostituted their influence in that body as the
mercenary instruments of foreign corruption: but they could not, with
more or with equal propriety, have contemplated the impeachment and
punishment of two thirds of the Senate, consenting to an improper
treaty, than of a majority of that or of the other branch of the
national legislature, consenting to a pernicious or unconstitutional
law--a principle which, I believe, has never been admitted into
any government. How, in fact, could a majority in the House of
Representatives impeach themselves? Not better, it is evident, than two
thirds of the Senate might try themselves. And yet what reason is
there, that a majority of the House of Representatives, sacrificing the
interests of the society by an unjust and tyrannical act of legislation,
should escape with impunity, more than two thirds of the Senate,
sacrificing the same interests in an injurious treaty with a foreign
power? The truth is, that in all such cases it is essential to the
freedom and to the necessary independence of the deliberations of the
body, that the members of it should be exempt from punishment for acts
done in a collective capacity; and the security to the society must
depend on the care which is taken to confide the trust to proper hands,
to make it their interest to execute it with fidelity, and to make it
as difficult as possible for them to combine in any interest opposite to
that of the public good.

So far as might concern the misbehavior of the Executive in perverting
the instructions or contravening the views of the Senate, we need not
be apprehensive of the want of a disposition in that body to punish the
abuse of their confidence or to vindicate their own authority. We may
thus far count upon their pride, if not upon their virtue. And so far
even as might concern the corruption of leading members, by whose arts
and influence the majority may have been inveigled into measures
odious to the community, if the proofs of that corruption should be
satisfactory, the usual propensity of human nature will warrant us in
concluding that there would be commonly no defect of inclination in
the body to divert the public resentment from themselves by a ready
sacrifice of the authors of their mismanagement and disgrace.

PUBLIUS

1. In that of New Jersey, also, the final judiciary authority is in
a branch of the legislature. In New Hampshire, Massachusetts,
Pennsylvania, and South Carolina, one branch of the legislature is the
court for the trial of impeachments.

Q: Can you write an appropriate summary of the above paragraphs?
A:

completion: Hamilton responds to four further objections raised against the powers granted to the Senate as a court for the trial of impeachment. The first objection is that the provision "confounds legislative and judiciary authorities in the same body." Hamilton argues that this is necessary and proper since the congress must be able to hold the executive accountable. He further notes that the role of accusing and judging is split between the two houses of Congress and that similar systems have been used in the states without deleterious effect. The second objection is that the Senate will have so much power as to become aristocratic in a nature. Hamilton argues that the house will have sufficient powers to counter the influence of the senate. The third objection is that the senators will not be able to impartially judge presidential appointees who they once voted to confirm. Hamilton argues that the Senate will not be so biased as to be blind to the "evidences of guilt so extraordinary" as to have induced the representatives in the House to have impeached the official. The fourth objection is that senators will not be able to impartially judge themselves for the role they play in the ratification of foreign treaties. The critics imagine a situation in which senators act corruptly in ratifying a certain treaty. These critics claim that in such a situation the senators would end up being their own judges. Hamilton dismisses this on the basis that it would likely be only a few corrupt leaders in the senate who manipulated the treaty and that these men could be impeached and tried. He furthermore points out the rather obvious impossibility of fashioning a system in which a legislative body could impeach or convict itself by majority vote.


prompt:
Chapter: The Executive Department

From the New York Packet. Tuesday, March 11, 1788.

HAMILTON

To the People of the State of New York:

THE constitution of the executive department of the proposed government,
claims next our attention.

There is hardly any part of the system which could have been attended
with greater difficulty in the arrangement of it than this; and there
is, perhaps, none which has been inveighed against with less candor or
criticised with less judgment.

Here the writers against the Constitution seem to have taken pains
to signalize their talent of misrepresentation. Calculating upon the
aversion of the people to monarchy, they have endeavored to enlist
all their jealousies and apprehensions in opposition to the intended
President of the United States; not merely as the embryo, but as the
full-grown progeny, of that detested parent. To establish the pretended
affinity, they have not scrupled to draw resources even from the regions
of fiction. The authorities of a magistrate, in few instances greater,
in some instances less, than those of a governor of New York, have been
magnified into more than royal prerogatives. He has been decorated with
attributes superior in dignity and splendor to those of a king of Great
Britain. He has been shown to us with the diadem sparkling on his brow
and the imperial purple flowing in his train. He has been seated on a
throne surrounded with minions and mistresses, giving audience to the
envoys of foreign potentates, in all the supercilious pomp of majesty.
The images of Asiatic despotism and voluptuousness have scarcely been
wanting to crown the exaggerated scene. We have been taught to tremble
at the terrific visages of murdering janizaries, and to blush at the
unveiled mysteries of a future seraglio.

Attempts so extravagant as these to disfigure or, it might rather
be said, to metamorphose the object, render it necessary to take an
accurate view of its real nature and form: in order as well to ascertain
its true aspect and genuine appearance, as to unmask the disingenuity
and expose the fallacy of the counterfeit resemblances which have been
so insidiously, as well as industriously, propagated.

In the execution of this task, there is no man who would not find it
an arduous effort either to behold with moderation, or to treat with
seriousness, the devices, not less weak than wicked, which have been
contrived to pervert the public opinion in relation to the subject. They
so far exceed the usual though unjustifiable licenses of party artifice,
that even in a disposition the most candid and tolerant, they must force
the sentiments which favor an indulgent construction of the conduct
of political adversaries to give place to a voluntary and unreserved
indignation. It is impossible not to bestow the imputation of deliberate
imposture and deception upon the gross pretense of a similitude between
a king of Great Britain and a magistrate of the character marked out for
that of the President of the United States. It is still more impossible
to withhold that imputation from the rash and barefaced expedients which
have been employed to give success to the attempted imposition.

In one instance, which I cite as a sample of the general spirit, the
temerity has proceeded so far as to ascribe to the President of the
United States a power which by the instrument reported is EXPRESSLY
allotted to the Executives of the individual States. I mean the power of
filling casual vacancies in the Senate.

This bold experiment upon the discernment of his countrymen has been
hazarded by a writer who (whatever may be his real merit) has had no
inconsiderable share in the applauses of his party(1); and who, upon
this false and unfounded suggestion, has built a series of observations
equally false and unfounded. Let him now be confronted with the evidence
of the fact, and let him, if he be able, justify or extenuate the
shameful outrage he has offered to the dictates of truth and to the
rules of fair dealing.

The second clause of the second section of the second article empowers
the President of the United States "to nominate, and by and with the
advice and consent of the Senate, to appoint ambassadors, other public
ministers and consuls, judges of the Supreme Court, and all other
OFFICERS of United States whose appointments are NOT in the Constitution
OTHERWISE PROVIDED FOR, and WHICH SHALL BE ESTABLISHED BY LAW."
Immediately after this clause follows another in these words: "The
President shall have power to fill up all VACANCIES that may happen
DURING THE RECESS OF THE SENATE, by granting commissions which shall
EXPIRE AT THE END OF THEIR NEXT SESSION." It is from this last provision
that the pretended power of the President to fill vacancies in the
Senate has been deduced. A slight attention to the connection of the
clauses, and to the obvious meaning of the terms, will satisfy us that
the deduction is not even colorable.

The first of these two clauses, it is clear, only provides a mode for
appointing such officers, "whose appointments are NOT OTHERWISE PROVIDED
FOR in the Constitution, and which SHALL BE ESTABLISHED BY LAW";
of course it cannot extend to the appointments of senators, whose
appointments are OTHERWISE PROVIDED FOR in the Constitution(2), and
who are ESTABLISHED BY THE CONSTITUTION, and will not require a future
establishment by law. This position will hardly be contested.

The last of these two clauses, it is equally clear, cannot be understood
to comprehend the power of filling vacancies in the Senate, for the
following reasons: First. The relation in which that clause stands to
the other, which declares the general mode of appointing officers of the
United States, denotes it to be nothing more than a supplement to
the other, for the purpose of establishing an auxiliary method of
appointment, in cases to which the general method was inadequate. The
ordinary power of appointment is confined to the President and Senate
JOINTLY, and can therefore only be exercised during the session of the
Senate; but as it would have been improper to oblige this body to be
continually in session for the appointment of officers and as vacancies
might happen IN THEIR RECESS, which it might be necessary for the
public service to fill without delay, the succeeding clause is
evidently intended to authorize the President, SINGLY, to make temporary
appointments "during the recess of the Senate, by granting commissions
which shall expire at the end of their next session." Second. If this
clause is to be considered as supplementary to the one which precedes,
the VACANCIES of which it speaks must be construed to relate to the
"officers" described in the preceding one; and this, we have seen,
excludes from its description the members of the Senate. Third. The time
within which the power is to operate, "during the recess of the Senate,"
and the duration of the appointments, "to the end of the next session"
of that body, conspire to elucidate the sense of the provision, which,
if it had been intended to comprehend senators, would naturally have
referred the temporary power of filling vacancies to the recess of the
State legislatures, who are to make the permanent appointments, and
not to the recess of the national Senate, who are to have no concern in
those appointments; and would have extended the duration in office of
the temporary senators to the next session of the legislature of the
State, in whose representation the vacancies had happened, instead of
making it to expire at the end of the ensuing session of the national
Senate. The circumstances of the body authorized to make the permanent
appointments would, of course, have governed the modification of a power
which related to the temporary appointments; and as the national Senate
is the body, whose situation is alone contemplated in the clause upon
which the suggestion under examination has been founded, the vacancies
to which it alludes can only be deemed to respect those officers in
whose appointment that body has a concurrent agency with the President.
But last, the first and second clauses of the third section of the first
article, not only obviate all possibility of doubt, but destroy the
pretext of misconception. The former provides, that "the Senate of the
United States shall be composed of two Senators from each State, chosen
BY THE LEGISLATURE THEREOF for six years"; and the latter directs, that,
"if vacancies in that body should happen by resignation or otherwise,
DURING THE RECESS OF THE LEGISLATURE OF ANY STATE, the Executive
THEREOF may make temporary appointments until the NEXT MEETING OF THE
LEGISLATURE, which shall then fill such vacancies." Here is an express
power given, in clear and unambiguous terms, to the State Executives,
to fill casual vacancies in the Senate, by temporary appointments; which
not only invalidates the supposition, that the clause before considered
could have been intended to confer that power upon the President of the
United States, but proves that this supposition, destitute as it is even
of the merit of plausibility, must have originated in an intention
to deceive the people, too palpable to be obscured by sophistry, too
atrocious to be palliated by hypocrisy.

I have taken the pains to select this instance of misrepresentation, and
to place it in a clear and strong light, as an unequivocal proof of the
unwarrantable arts which are practiced to prevent a fair and impartial
judgment of the real merits of the Constitution submitted to the
consideration of the people. Nor have I scrupled, in so flagrant a case,
to allow myself a severity of animadversion little congenial with the
general spirit of these papers. I hesitate not to submit it to the
decision of any candid and honest adversary of the proposed government,
whether language can furnish epithets of too much asperity, for so
shameless and so prostitute an attempt to impose on the citizens of
America.

PUBLIUS

1. See CATO, No. V.

2. Article I, section 3, clause 1.

Q: Can you write an appropriate summary of the above paragraphs?
A:

completion: Hamilton forcefully accuses the anti-federalists of misrepresenting the provisions in the Constitution relating to the presidency. He accuses the critics of misleading the American people and playing on their fears of monarchy in order to turn them against the Constitution. As evidence of this deception, Hamilton conducts a close reading the sections of the Constitution dealing with the powers of the presidency and focuses on dispelling the false claim that the president would have the power to appoint vacancies in the Senate.


prompt:
Chapter: The Mode of Electing the President

From The Independent Journal. Wednesday, March 12, 1788.

HAMILTON

To the People of the State of New York:

THE mode of appointment of the Chief Magistrate of the United States
is almost the only part of the system, of any consequence, which has
escaped without severe censure, or which has received the slightest mark
of approbation from its opponents. The most plausible of these, who has
appeared in print, has even deigned to admit that the election of the
President is pretty well guarded.(1) I venture somewhat further, and
hesitate not to affirm, that if the manner of it be not perfect, it is
at least excellent. It unites in an eminent degree all the advantages,
the union of which was to be wished for.(E1)

It was desirable that the sense of the people should operate in the
choice of the person to whom so important a trust was to be confided.
This end will be answered by committing the right of making it, not to
any preestablished body, but to men chosen by the people for the special
purpose, and at the particular conjuncture.

It was equally desirable, that the immediate election should be made by
men most capable of analyzing the qualities adapted to the station, and
acting under circumstances favorable to deliberation, and to a judicious
combination of all the reasons and inducements which were proper to
govern their choice. A small number of persons, selected by their
fellow-citizens from the general mass, will be most likely to
possess the information and discernment requisite to such complicated
investigations.

It was also peculiarly desirable to afford as little opportunity as
possible to tumult and disorder. This evil was not least to be dreaded
in the election of a magistrate, who was to have so important an agency
in the administration of the government as the President of the United
States. But the precautions which have been so happily concerted in the
system under consideration, promise an effectual security against
this mischief. The choice of SEVERAL, to form an intermediate body
of electors, will be much less apt to convulse the community with any
extraordinary or violent movements, than the choice of ONE who was
himself to be the final object of the public wishes. And as the
electors, chosen in each State, are to assemble and vote in the State in
which they are chosen, this detached and divided situation will expose
them much less to heats and ferments, which might be communicated from
them to the people, than if they were all to be convened at one time, in
one place.

Nothing was more to be desired than that every practicable obstacle
should be opposed to cabal, intrigue, and corruption. These most deadly
adversaries of republican government might naturally have been expected
to make their approaches from more than one quarter, but chiefly from
the desire in foreign powers to gain an improper ascendant in our
councils. How could they better gratify this, than by raising a creature
of their own to the chief magistracy of the Union? But the convention
have guarded against all danger of this sort, with the most provident
and judicious attention. They have not made the appointment of the
President to depend on any preexisting bodies of men, who might be
tampered with beforehand to prostitute their votes; but they have
referred it in the first instance to an immediate act of the people of
America, to be exerted in the choice of persons for the temporary and
sole purpose of making the appointment. And they have excluded from
eligibility to this trust, all those who from situation might be
suspected of too great devotion to the President in office. No senator,
representative, or other person holding a place of trust or profit under
the United States, can be of the numbers of the electors. Thus without
corrupting the body of the people, the immediate agents in the election
will at least enter upon the task free from any sinister bias. Their
transient existence, and their detached situation, already taken notice
of, afford a satisfactory prospect of their continuing so, to the
conclusion of it. The business of corruption, when it is to embrace so
considerable a number of men, requires time as well as means. Nor would
it be found easy suddenly to embark them, dispersed as they would be
over thirteen States, in any combinations founded upon motives, which
though they could not properly be denominated corrupt, might yet be of a
nature to mislead them from their duty.

Another and no less important desideratum was, that the Executive should
be independent for his continuance in office on all but the people
themselves. He might otherwise be tempted to sacrifice his duty to his
complaisance for those whose favor was necessary to the duration of his
official consequence. This advantage will also be secured, by making his
re-election to depend on a special body of representatives, deputed by
the society for the single purpose of making the important choice.

All these advantages will happily combine in the plan devised by the
convention; which is, that the people of each State shall choose a
number of persons as electors, equal to the number of senators and
representatives of such State in the national government, who shall
assemble within the State, and vote for some fit person as President.
Their votes, thus given, are to be transmitted to the seat of the
national government, and the person who may happen to have a majority
of the whole number of votes will be the President. But as a majority of
the votes might not always happen to centre in one man, and as it
might be unsafe to permit less than a majority to be conclusive, it is
provided that, in such a contingency, the House of Representatives shall
select out of the candidates who shall have the five highest number
of votes, the man who in their opinion may be best qualified for the
office.

The process of election affords a moral certainty, that the office of
President will never fall to the lot of any man who is not in an eminent
degree endowed with the requisite qualifications. Talents for low
intrigue, and the little arts of popularity, may alone suffice to
elevate a man to the first honors in a single State; but it will require
other talents, and a different kind of merit, to establish him in
the esteem and confidence of the whole Union, or of so considerable a
portion of it as would be necessary to make him a successful candidate
for the distinguished office of President of the United States. It will
not be too strong to say, that there will be a constant probability
of seeing the station filled by characters pre-eminent for ability and
virtue. And this will be thought no inconsiderable recommendation of
the Constitution, by those who are able to estimate the share which the
executive in every government must necessarily have in its good or ill
administration. Though we cannot acquiesce in the political heresy of
the poet who says:

"For forms of government let fools contest--That which is best
administered is best,"--yet we may safely pronounce, that the true test
of a good government is its aptitude and tendency to produce a good
administration.

The Vice-President is to be chosen in the same manner with the
President; with this difference, that the Senate is to do, in respect
to the former, what is to be done by the House of Representatives, in
respect to the latter.

The appointment of an extraordinary person, as Vice-President, has been
objected to as superfluous, if not mischievous. It has been alleged,
that it would have been preferable to have authorized the Senate to
elect out of their own body an officer answering that description. But
two considerations seem to justify the ideas of the convention in
this respect. One is, that to secure at all times the possibility of
a definite resolution of the body, it is necessary that the President
should have only a casting vote. And to take the senator of any State
from his seat as senator, to place him in that of President of the
Senate, would be to exchange, in regard to the State from which he came,
a constant for a contingent vote. The other consideration is, that
as the Vice-President may occasionally become a substitute for the
President, in the supreme executive magistracy, all the reasons which
recommend the mode of election prescribed for the one, apply with great
if not with equal force to the manner of appointing the other. It is
remarkable that in this, as in most other instances, the objection which
is made would lie against the constitution of this State. We have a
Lieutenant-Governor, chosen by the people at large, who presides in
the Senate, and is the constitutional substitute for the Governor, in
casualties similar to those which would authorize the Vice-President to
exercise the authorities and discharge the duties of the President.

PUBLIUS

1. Vide federal farmer.

E1. Some editions substitute "desired" for "wished for".

Q: Can you write an appropriate summary of the above paragraphs?
A:

completion: Hamilton defends the process for selecting the president. He argues that the system of an electoral college ensures that "the sense of the people" will play a key role in selecting the president, while, at the same time, affording "as little opportunity as possible to tumult and disorder." It was believed that electing the president directly, without the intermediate step of the electors, might lead to instability. Hamilton argues that electors will be protected from bias since they do not hold any other political office and are separated from electors from other states. Hamilton believed that this system would best ensure that the president was a man of great virtue and ability. This paper also discusses the provisions for the House of Representatives to elect the president in cases in which no candidate receives a majority of the votes. It furthermore defends the decision to elect the vice-president in much the same way that the president is elected.


prompt:
Chapter: 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. Second.
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. Third. 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. Fourth. 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.

Q: Can you write an appropriate summary of the above paragraphs?
A:

completion: Hamilton seeks to counter claims that the president would be an "elective monarch" as the anti-federalists claimed. Hamilton points to the fact that the president is elected, whereas the king of England inherits his position. The president furthermore has only a qualified negative on legislative acts--i.e. his veto can be overturned--whereas the king has an absolute negative. Both the president and the king serve as commander in chief, but the king also has the power to raise and maintain armies--a power reserved for the legislature in America. The president can only make treaties with the approval of the Senate. The king can make binding treaties as he sees fit. Similarly, the president can only appoint officers with the approval of the Senate, whereas the king can grant whatever titles he likes. The powers of the president in terms of commerce and currency are severely limited, whereas the king is "in several respects the arbiter of commerce." Hamilton furthermore suggests that, in many respects, the president would have less powers over his constituents than the governor of New York has over his.