Insurrection and the Constitution

The President shall be 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 may require the Opinion, in writing, of the principal Officer in each of the executive Departments, upon any Subject relating to the Duties of their respective Offices, and he shall have Power to Grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment.

He has excited domestic insurrections amongst us, and has endeavoured to bring on the inhabitants of our frontiers the merciless Indian savages, whose known rule of warfare is an undistinguished destruction of all ages, sexes, and conditions.

Comment: Domestic slavery and Dunmore's Proclamation; role of slavery in the making on the Dec/Constitution. Cf. TJ's original draft of Dec of Ind

(3) No State shall, without the Consent of Congress, lay any Duty of Tonnage, keep Troops, or Ships of War in time of Peace, enter into any Agreement or Compact with another State, or with a foreign Power, or engage in War, unless actually invaded, or in such imminent Danger as will not admit of delay.

Docr. Franklin. The first man, put at the helm will be a good one. No body knows what sort may come afterwards. The Executive will be always increasing here, as elsewhere, till it ends in a monarchy

Comment: Franklin voicing fear that insurrections may produce overzealous executive and devolve into monarchy (also prior to a vote on "absolute negative" of Executive aka "veto")

If strong and extensive powers are vested in the Executive, and that executive consists only of one person, the government will of course degenerate (for I will call it degeneracy) into a monarchy — a government so contrary to the genius of the people that they will reject even the appearance of it...Should an insurrection, a rebellion or invasion happen in New Hampshire when the single supreme magistrate is a citizen of Georgia, would not the people of New Hampshire naturally ascribe any delay in defending them to such a circumstance and vice versa? If the Executive is vested in three persons, one chosen from the Northern, one from the Middle, and one from the Southern States, will it not contribute to quiet the minds of the people and convince them that there will be proper attention paid to their respective concerns? Will not three men so chosen bring with them, into office, a more perfect and extensive knowledge of the real interests of this great Union? Will not such a mode of appointment be the most effectual means of preventing cabals and intrigues between the legislature and the candidates for this office, especially with those candidates who from their local situation, near the seat of the federal government, will have the greatest temptations and the greatest opportunities? Will it not be the most effectual means of checking and counteracting the aspiring views of dangerous and ambitious men, and consequently the best security for the stability and duration of our government upon the invaluable principles of liberty? These Sir, are some of my motives for preferring an Executive consisting of three persons rather than of one.

Comment: Diffusion of Executive power into three persons; fear of absolute power and corruption (republican decay!); divided sovereignty issue aka federalism, also loyalty to state/region prominent here.

The body of congress is ineffectual to carry the great objects of safety and protection into execution. What would their powers be over the commander of the military, but for the virtue of the commander? As the state assemblies are constantly encroaching on the powers of congress, the Jersey plan would rather encourage such encroachments than be a check to it; and from the nature of the institution, congress would ever be governed by cabal and intrigue — They are besides too numerous for an executive, nor can any additional powers be sufficient to enable them to protect us against foreign invasion. Amongst other things congress was intended to be a body to preserve peace among the states, and in the rebellion of Massachusetts it was found they were not authorized to use the troops of the confederation to quell it. Every one is impressed with the idea of a general regulation of trade and commerce. Can congress do this? when from the nature of their institution they are so subject to cabal and intrigue? And would it not be dangerous to entrust such a body with the power, when they are dreaded on these grounds? I am certain that a national government must be established, and this is the only moment when it can be done — And let me conclude by observing, that the best exercise of power is to exert it for the public good.

Comment: Referencing the weaknesses of the Articles of Confederation, in particular, lack of national authority to assist in suppressing Shays' rebellion; move away from legislature acting as executive branch (flaws therein)

4. Will it secure the internal tranquillity of the States themselves? The insurrections in Massts. admonished all the States of the danger to which they were exposed. Yet the plan of Mr. P. contained no provisions for supplying the defect of the Confederation on this point. According to the Republican theory indeed, Right & power being both vested in the majority, are held to be synonimous. According to fact & experience, a minority may in an appeal to force be an overmatch for the majority. 1. If the minority happen to include all such as possess the skill & habits of military life, with such as possess the great pecuniary resources, one third may conquer the remaining two thirds. 2. one third of those who participate in the choice of rulers may be rendered a majority by the accession of those whose poverty disqualifies them from a suffrage, & who for obvious reasons may be more ready to join the standard of sedition than that of the established Government. 3. Where slavery exists, the Republican Theory becomes still more fallacious.

Comment: Shays' Rebellion still fresh in their minds; possibility of future insurrections determined by republican theory. Prophetic words on insurrections and republican theory in slave states (though slavery in every state at the time of writing)

Mr. Gerry was agst. letting loose the myrmidons of the U. States on a State without its own consent. The States will be the best Judges in such cases. More blood would have been spilt in Massts in the late insurrection, if the Genl. authority had intermeddled.

Comment: Fear of 'general' (soon enough, federal) authority becoming deleterious; suppressing Shays' rebellion still fresh; loyalty to state ('states rights') once again not a symptom of south

Col. Mason. He mentioned the dangerous insurrections of the slaves in Greece and Sicily; and the instructions given by Cromwell to the Commissioners sent to Virginia, to arm the servants & slaves, in case other means of obtaining its submission should fail. Maryland & Virginia he said had already prohibited the importation of slaves expressly. N. Carolina had done the same in substance. All this would be in vain if S. Carolina & Georgia be at liberty to import. The Western people are already calling out for slaves for their new lands; and will fill that Country with slaves if they can be got thro’ S. Carolina & Georgia. Slavery discourages arts & manufactures. The poor despise labor when performed by slaves. They prevent the immigration of Whites, who really enrich & strengthen a Country. They produce the most pernicious effect on manners. Every master of slaves is born a petty tyrant. They bring the judgment of heaven on a Country. As nations can not be rewarded or punished in the next world they must be in this. By an inevitable chain of causes & effects providence punishes national sins, by national calamities. He lamented that some of our Eastern brethren had from a lust of gain embarked in this nefarious traffic. As to the States being in possession of the Right to import, this was the case with many other rights, now to be properly given up. He held it essential in every point of view, that the Genl. Govt. should have power to prevent the increase of slavery.

Comment: Link between slavery and insurrections, cf. Dunmore's Proclamation during Revolution as well as Dec of Ind (and cf. Jefferson's original draft).

Yet the clause did not wholly escape animadversion in the state conventions. The propriety of admitting the president to be commander-in-chief, so far as to give orders, and have a general superintendency, was admitted. But it was urged, that it would be dangerous to let him command in person without any restraint, as he might make a bad use of it. The consent of both houses of congress ought, therefore, to be required, before he should take the actual command. The answer then given was, that though the president might, there was no necessity, that he should, take the command in person; and there was no probability, that he would do so, except in extraordinary emergencies, and when he was possessed of superior military talents. But if his assuming the actual command depended upon the assent of congress, what was to be done, when an invasion, or insurrection took place during the recess of congress? Besides; the very power of restraint might be so employed, as to cripple the executive department, when filled by a man of extraordinary military genius.

Comment: Concern not so much executive as commander but more of the executives power to command.

But the principal argument for reposing the power of pardon in the executive magistrate in cases of treason is, that in seasons of insurrection, or rebellion, there are critical moments, when a well-timed offer of pardon to the insurgents, or rebels, may restore the tranquillity of the Commonwealth; and if these are suffered to pass unimproved, it may be impossible afterwards to interpose with the same success. The dilatory process of convening the legislature, or one of the branches, for the purpose of sanctioning such a measure, would frequently be the loss of the golden opportunity. The loss of a week, of a day, or even of an hour may sometimes prove fatal.

Comment: Executive must respond with alacrity when faced with a crisis; c.f Federalist 74. GW's use of overwhelming force, i.e. multiple state militias.

The power to convene congress on extraordinary occasions is indispensable to the proper operations, and even safety of the government. Occasions may occur in the recess of congress, requiring the government to take vigorous measures to repel foreign aggressions, depredations, and direct hostilities; to provide adequate means to mitigate, or overcome unexpected calamities; to suppress insurrections; and to provide for innumerable other important exigencies, arising out of the intercourse and revolutions among nations.

Comment: Similar to 1494, exigency of the moment, especially in midst of insurrection, gives Executive power to convene congress (cf. Art 2 S 3)

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 Signior, 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...

Comment: Reflecting worries of antifeds (and others) that executive would act as and/or become a "monarch." Cf. Patrick Henry at VA convention

The President of the United States is to be "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." The propriety of this provision is so evident in itself; and it is at the same time so consonant to the precedents of the State constitutions in general, that little need be said to explain or enforce it. Even those of them, which have in other respects coupled the Chief Magistrate with a Council, have for the most part concentred the military authority in him alone. Of all the cares or concerns of government, the direction of war most peculiarly demands those qualities which distinguish the exercise of power by a single hand. The direction of war implies the direction of the common strength; and the power of directing and employing the common strength, forms an usual and essential part in the definition of the executive authority...But the principal argument for reposing the power of pardoning in this case to the Chief Magistrate is this: in seasons of insurrection or rebellion, there are often critical moments, when a well timed offer of pardon to the insurgents or rebels may restore the tranquillity of the commonwealth; and which, if suffered to pass unimproved, it may never be possible afterwards to recall.”

Comment: AH's puts war powers within Executive branch; second part of Art 1 S 2 C1 discusses pardoning power. Interestingly, GW does not mention pardon in 8/7/1794 proclamation - though he does pardon two "insurgents" in 1802.

[The governor of this commonwealth for the time being, shall be the commander in chief of the army and navy, and of all the military forces of the state, by sea and land, and shall have full power by himself, or by any commander, or other officer or officers, from time to time, to train, instruct, exercise and govern the militia and navy; and, for the special defence and safety of the commonwealth, to assemble in martial array, and put in warlike posture, the inhabitants thereof, and to lead and conduct them, and with them to encounter, repel, resist, expel and pursue, by force of arms, as well by sea as by land, within or without the limits of this commonwealth, and also to kill, slay and destroy, if necessary, and conquer, by all fitting ways, enterprises, and means whatsoever, all and every such person and persons as shall, at any time hereafter, in a hostile manner, attempt or enterprise the destruction, invasion, detriment, or annoyance of this commonwealth; and to use and exercise, over the army and navy, and over the militia in actual service, the law martial, in time of war or invasion, and also in time of rebellion, declared by the legislature to exist, as occasion shall necessarily require; and to take and surprise by all ways and means whatsoever, all and every such person or persons, with their ships, arms, ammunition and other goods, as shall, in a hostile manner, invade, or attempt the invading, conquering, or annoying this commonwealth; and that the governor be intrusted with all these and other powers, incident to the offices of captain-general and commander in chief, and admiral, to be exercised agreeably to the rules and regulations of the constitution, and the laws of the land, and not otherwise.

One Government can collect and avail itself of the talents and experience of the ablest men, in whatever part of the Union they may be found. It can move on uniform principles of policy-It can harmonize, assimilate, and protect the several parts and members, and extend the benefit of its foresight and precautions to each. In the formation of treaties it will regard the interest of the whole, and the particular interests of the parts as connected with that of the whole. It can apply the resources and power of the whole to the defence of any particular part, and that more easily and expeditiously than State Governments, or separate confederacies can possibly do, for want of concert and unity of system- It can place the militia under one plan of discipline, and by putting their officers in a proper line of subordination to the Chief Magistrate, will as it were consolidate them into one corps, and thereby render them more efficient than if divided into thirteen or into three or four distinct independent bodies.

What would the militia of Britain be, if the English militia obeyed the Government of England, if the Scotch militia obeyed the Government of Scotland, and if the Welch militia obeyed the Government of Wales! Suppose an invasion-would those three Governments (if they agreed at all) be able with all their respective forces, to operate against the enemy so effectually the single Government of Great Britain would?

Let the point of extreme depression to which our national dignity and credit have sunk-let the inconveniences felt everywhere from a lax and ill administration of government–let the revolt of a part of the State of North-Carolina–the late menacing disturbances in Pennsylvania and the actual insurrections and rebellions in Massachusetts declare —

The kingdom of Great Britain falls within the first description. An insular situation, and a powerful marine, guarding it in a great measure against the possibility of foreign invasion, supercede the necessity of a numerous army within the kingdom. A sufficient force to make head against a sudden descent, till the militia could have time to rally and embody, is all that has been deemed requisite. No motive of national policy have demanded, nor would public opinion have tolerated larger number of troops upon its domestic establishment. There has been, for a long time past, little room for the operation of the other causes, which have been enumerated the consequences of internal war. This peculiar felicity of situation has, in a great degree, contributed to preserve the liberty, which that country to this day enjoys, in spite of the prevalent venality and corruption. If, on the contrary, Britain had been situated on the continent, and had been compelled, as she would have been, by that situation, to make her military establishments at home co-extensive with those of the other great powers of Europe, she, like them, would in all probability, be at this day a victim to the absolute power of a single man. 'Tis possible, though not easy, that the people of that island may be enslaved from other causes, but it cannot be by the powers of an army so inconsiderable as that which has been usually kept up in that kingdom.

The kingdom of Great Britain falls within the first description. An insular situation, and a powerful marine, guarding it in a great measure against the possibility of foreign invasion, supercede the necessity of a numerous army within the kingdom. A sufficient force to make head against a sudden descent, till the militia could have time to rally and embody, is all that has been deemed requisite. No motive of national policy have demanded, nor would public opinion have tolerated larger number of troops upon its domestic establishment. There has been, for a long time past, little room for the operation of the other causes, which have been enumerated the consequences of internal war. This peculiar felicity of situation has, in a great degree, contributed to preserve the liberty, which that country to this day enjoys, in spite of the prevalent venality and corruption. If, on the contrary, Britain had been situated on the continent, and had been compelled, as she would have been, by that situation, to make her military establishments at home co-extensive with those of the other great powers of Europe, she, like them, would in all probability, be at this day a victim to the absolute power of a single man. 'Tis possible, though not easy, that the people of that island may be enslaved from other causes, but it cannot be by the powers of an army so inconsiderable as that which has been usually kept up in that kingdom.

The kingdom of Great Britain falls within the first description. An insular situation, and a powerful marine, guarding it in a great measure against the possibility of foreign invasion, supercede the necessity of a numerous army within the kingdom. A sufficient force to make head against a sudden descent, till the militia could have time to rally and embody, is all that has been deemed requisite. No motive of national policy have demanded, nor would public opinion have tolerated larger number of troops upon its domestic establishment. There has been, for a long time past, little room for the operation of the other causes, which have been enumerated the consequences of internal war. This peculiar felicity of situation has, in a great degree, contributed to preserve the liberty, which that country to this day enjoys, in spite of the prevalent venality and corruption. If, on the contrary, Britain had been situated on the continent, and had been compelled, as she would have been, by that situation, to make her military establishments at home co-extensive with those of the other great powers of Europe, she, like them, would in all probability, be at this day a victim to the absolute power of a single man. 'Tis possible, though not easy, that the people of that island may be enslaved from other causes, but it cannot be by the powers of an army so inconsiderable as that which has been usually kept up in that kingdom.

A Firm Union will be of the utmost moment to the peace and liberty of the States as a barrier against domestic faction and insurrection. It is impossible to read the history of the petty Republics of Greece and Italy, without feeling sensations of horror and disgust at the distractions with which they were continually agitated, and at the rapid succession of revolutions, by which they were kept in a state of perpetual vibration, between the extremes of tyranny and anarchy. If they exhibit occasional calms, these only serve as short lived contrasts to the furious storms that are to succeed. If now and then intervals of felicity open themselves to view, we behold them with a mixture of regret arising from the reflection that the pleasing scenes before us are soon to be overwhelmed by the tempestuous waves of sedition and party-rage. If momentary rays of glory break forth from the gloom, while they dazzle us with a transient and fleeting brilliancy, they at the same time admonish us to lament that the vices of government should pervert the direction and tarnish the lustre of those bright talents and exalted indowments, for which the favoured soils, that produced them, have been so justly celebrated.

"Should a popular insurrection happen, in one of the confederate States, the others are able to quell it. Should abuses creep into one part, they are reformed by those that remain sound. The State may be destroyed on one side, and not on the other; the confederacy may be dissolved, and the confederates preserve their sovereignty."

I have thought it proper to quote at length these interesting passages, because they contain a luminous abrigement of the principal arguments in favour of the Union, and must effectually remove the false impressions, which a misapplication of other parts of the work was calculated to make. They have at the same time an intimate connection with the more immediate design of this Paper; which is to illustrate the tendency of the Union to repress domestic faction and insurrection.

I have thought it proper to quote at length these interesting passages, because they contain a luminous abrigement of the principal arguments in favour of the Union, and must effectually remove the false impressions, which a misapplication of other parts of the work was calculated to make. They have at the same time an intimate connection with the more immediate design of this Paper; which is to illustrate the tendency of the Union to repress domestic faction and insurrection.

That there may happen cases, in which the national government may be necessitated to resort to force, cannot be denied. Our own experience has corroborated the lessons taught by the examples of other nations; that emergencies of this sort will sometimes arise in all societies, however constituted; that seditions and insurrections are unhappily maladies as inseparable from the body politic, as tumours and eurptions from the natural body; that the idea of governing at all times by the simple force of law (which we have been told is the only admissible principle of republican government) has no place but in the reveries of those political doctors, whose sagacity disdains the admonitions experimental instruction.

Should such emergencies at any time happen under the national government, there could be no remedy but force. The means to be employed must be proportioned to the extent of the mischief. If it should be a slight commotion in a small part of a State, the militia of the residue would be adequate to its suppression; and the natural presumption is, that they would be ready to do their duty. An insurrection, whatever may be its immediate cause, eventually endangers all government: Regard to the public peace, if not to the rights of the Union, would engage the citizens, to whom the contagion had not communicated itself, to oppose the insurgents: And if the general government should be found in practice conducive to the prosperity and felicity of the people, it were irrational to believe that they would be disinclined to its support.

If on the contrary the insurrection should pervade a whole State, or a principal part of it, the employment of a different kind of force might become unavoidable. It appears that Massachusetts found it necessary to raise troops for repressing the disorders within that State; that Pennsylvania, from the mere apprehension of commotions among a part of her citizens, has thought proper to have recourse to the same measure. Suppose the State of New-York had been inclined to reestablish her lost jurisdiction over the inhabitants of Vermont, could she have hoped for success in such an enterprise from the efforts of the militia alone? Would she not have been compelled to raise and to maintain a more regular force for the execution of her design? If it must then be admitted that the necessity of recurring to a force different from the militia in cases of this extraordinary nature, is applicable to the State governments themselves, why should the possibility that the national government might be under a like necessity in similar extremities, be made an objection to its existence? Is it not surprising that men, who declare an attachment to the union in the abstract, should urge, as an objection to the proposed constitution, what applies with tenfold weight to the plan for which they contend; and what as far as it has any foundation in truth is an inevitable consequence of civil society upon an enlarged scale? who would not prefer that possibility to the unceasing agitations and frequent revolutions which are the continual scourges of petty republics?

The power of regulating the militia and commanding its services in times of insurrection and invasion are natural incidents to the duties of superintending the common defence, and of watching over the internal peace of the confederacy.

It requires no skill in the science of war to discern that uniformity in the organization and discipline of the militia would be attended with the most beneficial effects, whenever they were called into service for the public defence. It would enable them to discharge the duties of the camp and of the field with mutual intelligence and concert; an advantage of peculiar moment in the operations of an army: And it would fit them much sooner to acquire the degree of proficiency in military functions, which would be essential to their usefulness. This desirable uniformity can only be accomplished by confiding the regulation of the militia to the direction of the national authority. It is therefore with the most evident propriety that the plan of the Convention proposes to empower the union "to provide for organizing, arming and disciplining the militia, and for governing such part of them as may be employed in the service of the United States, reserving to the states respectively the appointment of the officers and the authority of training the militia according to the discipline prescribed by Congress."

In times of insurrection or invasion it would be natural and proper that the militia of a neighbouring state should be marched into another to resist a common enemy or to guard the republic against the violences of faction or sedition. This was frequently the case in respect to the first object in the course of the late war; and this mutual succour is indeed a principal end of our political association. If the power of affording it be placed under the direction of the union, there will be no danger of a supine and listless inattention to the dangers of a neighbour, till its near approach had superadded the incitements of self preservation to the too feeble impulses of duty and sympathy.

At first view it might seem not to square with the republican theory, to suppose either that a majority have not the right, or that a minority will have the force to subvert a government; and consequently that the federal interposition can never be required but when it would be improper. But theoretic reasoning in this, as in most other cases, must be qualified by the lessons of practice. Why may not illicit combinations for purposes of violence be formed as well by a majority of a State, especially a small State, as by a majority of a county or a district of the same State; and if the authority of the State ought in the latter case to protect the local magistracy, ought not the federal authority in the former to support the State authority? Besides, there are certain parts of the State Constitutions which are so interwoven with the Federal Constitution, that a violent blow cannot be given to the one without communicating the wound to the other. Insurrections in a State will rarely induce a federal interposition, unless the number concerned in them, bear some proportion to the friends of government. It will be much better that the violence in such cases should be repressed by the superintending power, than that the majority should be left to maintain their cause by a bloody and obstinate contest. The existence of a right to interpose will generally prevent the necessity of exerting it.

Among the advantages of a confederate republic enumerated by Montesquieu, an important one is, "that should a popular insurrection happen in one of the States, the others are able to quell it. Should abuses creep into one part, they are reformed by those that remain sound.

The only refuge left for those who prophecy the downfall of the State Governments, is the visionary supposition that the Fœderal Government may previously accumulate a military force for the projects of ambition. The reasonings contained in these papers must have been employed to little purpose indeed, if it could be necessary now to disprove the reality of this danger. That the people and the States should for a sufficient period of time elect an uninterrupted succession of men ready to betray both; that the traitors should throughout this period, uniformly and systematically pursue some fixed plan for the extension of the military establishment; that the governments and the people of the States should silently and patiently behold the gathering storm, and continue to supply the materials, until it should be prepared to burst on their own heads, must appear to every one more like the incoherent dreams of a delirious jealousy, or the misjudged exaggerations of a counterfeit zeal, than like the sober apprehensions of genuine patriotism. Extravagant as the supposition is, let it however be made. Let a regular army, fully equal to the resources of the country be formed; and let it be entirely at the devotion of the Fœderal Government; still it would not be going too far to say, that the State Governments with the people on their side would be able to repel the danger. The highest number to which, according to the best computation, a standing army can be carried in any country, does not exceed one hundredth part of the whole number of souls; or one twenty-fifth part of the number able to bear arms. This proportion would not yield in the United States an army of more than twenty-five or thirty thousand men. To these would be opposed a militia amounting to near half a million of citizens with arms in their hands, officered by men chosen from among themselves, fighting for their common liberties, and united and conducted by governments possessing their affections and confidence. It may well be doubted whether a militia thus circumstanced could ever be conquered by such a proportion of regular troops. Those who are best acquainted with the late successful resistance of this country against the British arms will be most inclined to deny the possibility of it. Besides the advantage of being armed, which the Americans possess over the people of almost every other nation, the existence subordinate governments to which the people are attached, and by which the militia officers are appointed, forms a barrier against the enterprizes of ambition, more insurmountable than any which a simple government of any form can admit of. Notwithstanding the military establishments in the several kingdoms of Europe, which are carried as far as the public resources will bear, the governments are afraid to trust the people with arms. And it is not certain that with this aid alone, they would not be able to shake off their yokes. But were the people to possess the additional advantages of local governments chosen by themselves, who could collect the national will, and direct the national force; and of officers appointed out of the militia, by these governments and attached both to them and to the militia, it may be affirmed with the greatest assurance, that the throne of every tyranny in Europe would be speedily overturned, in spite of the legions which surround it. Let us not insult the free and gallant citizens of America with the suspicion that they would be less able to defend the rights of which they would be in actual possession, than the debased subjects of arbitrary power would be to rescue theirs from the hands of their oppressors. Let us rather no longer insult them with the supposition, that they can ever reduce themselves to the necessity of making the experiment, by a blind and tame submission to the long train of insidious measures, which must precede and produce it.

The President of the United States is to be "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." The propriety of this provision is so evident in itself; and it is at the same time so consonant to the precedents of the State constitutions in general, that little need be said to explain or enforce it. Even those of them, which have in other respects coupled the Chief Magistrate with a Council, have for the most part concentred the military authority in him alone. Of all the cares or concerns of government, the direction of war most peculiarly demands those qualities which distinguish the exercise of power by a single hand. The direction of war implies the direction of the common strength; and the power of directing and employing the common strength, forms an usual and essential part in the definition of the executive authority.

The President is to be the "Commander in Chief of the army and navy of the United States, and of the militia of the several States, when called into the actual service of the United States. He is to have power to grant reprieves and pardons for offences against the United States, except in cases of impeachment; to recommend to the consideration of Congress such measures as he shall judge necessary and expedient; to convene on extraordinary occasions both houses of the Legislature, or either of them, and in case of disagreement between them with respect to the time 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 the Governor of New-York. The most material points of difference are these- First; The President will have only the occasional command of such part of the militia of the nation, as by legislative provision may be called into the actual service of the Union-The King of Great-Britain and the Governor of New-York have at all times the entire command of all the militia within their several jurisdictions. In this article therefore the power of The President would be inferior to that of either the Monarch or the Governor.- Secondly; The President is to be Commander in Chief of the army and navy of the United States. In this respect his authority would be nominally the same with that of the King of Great-Britain, but in substance much inferior to it. It would amount to nothing more than the supreme command and direction of the military and naval forces, as first General and Admiral of the confederacy; while that of the British King extends to the declaring of war and to the raising and regulating of fleets and armies; all which by the Constitution under consideration would appertain to the Legislature. 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 the Commanders in Chief as well of the army as navy; and it may well be a question whether those of New-Hampshire and Massachusetts, in particular, do not in this instance confer larger powers upon their respective Governors, than could be claimed by a President of the United States.- Thirdly; the power of The President in respect to pardons would extend to all cases, except those of impeachment. The Governor of New-York may pardon in all cases, even in those of impeachment, except for treason and murder. Is not the power of the Governor in this article, on a calculation of political consequences, greater than that of The President? All conspiracies and plots against the government, which have not been matured into actual treason, may be screened from punishment of every kind, by the interposition of the prerogative of pardoning. If a Governor of New-York therefore should be at the head of any such conspiracy, until the design had been ripened into actual hostility, he could ensure 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 &conviction. Would not the prospect of a total indemnity for all the preliminary steps be a greater temptation to undertake and persevere in an enterprise against the public liberty than the mere prospect of an exemption from death and confiscation, if the final execution of the design, upon an actual appeal to arms, should miscarry? Would this last expectation have any influence at all, when the probability was computed that the person who was to afford that exemption might himself be involved in the consequences of the measure; and might be incapacitated by his agency in it, from affording the desired impunity. The better to judge of this matter, it will be necessary to recollect that by the proposed Constitution the offence of treason is limitted "to levying war upon the United States; and adhering to their enemies, giving them aid and comfort," and that by the laws of New-York it is confined within similar bounds.- Fourthly; The President can only adjourn the national Legislature in the single case of disagreement about the time of adjournment. The British monarch may prorogue or even dissolve the Parliament. The Governor of New-Yorkm ay also prorogue the Legislature of this State for a limited time; a power which in certain situations may be employed to very important purposes.

He is also to be authorised "to grant reprieves and pardons for offences against the United States except in cases of impeachment." Humanity and good policy conspire to dictate, that the benign prerogative of pardoning should be as little as possible fettered or embarrassed. The criminal code of every country partakes so much of necessary severity, that without an easy access to exceptions in favor of unfortunate guilt, justice would wear a countenance too sanguinary and cruel. As the sense of responsibility is always strongest in proportion as it is undivided, it may be inferred that a single man would be most ready to attend to the force of those motives, which might plead for a mitigation of the rigor of the law, and least apt to yield to considerations, which were calculated to shelter a fit object of its vengeance. The reflection, that the fate of a fellow creature depended on his sole fiat, would naturally inspire scrupulousness and caution: The dread of being accused of weakness or connivance would beget equal circumspection, though of a different kind. On the other hand, as men generally derive confidence from their numbers, they might often encourage each other in an act of obduracy, and might be less sensible to the apprehension of suspicion or censure for an injudicious or affected clemency. On these accounts, one man appears to be a more eligible dispenser of the mercy of the government than a body of men. The expediency of vesting the power of pardoning in The President has, if mistake not, been only contested in relation to the crime of treason. This, it has been urged, ought to have depended upon the assent of one or both of the branches of the legislative body. I shall not deny that there are strong reasons to be assigned for requiring in this particular the concurrence of that body or of a part of it. As treason is a crime levelled at the immediate being of the society, when the laws have once ascertained the guilt of the offender, there seems a fitness in refering the expediency of an act of mercy towards him to the judgment of the Legislature. And this ought the rather to be the case, as the supposition of the connivance of the Chief Magistrate ought not to be entirely excluded. But there are also strong objections to such a plan. It is not to be doubted that a single man of prudence and good sense, is better fitted, in delicate conjunctures, to balance the motives, which may plead for and against the remission of the punishment, than any numerous body whatever. It deserves particular attention, that treason will often be connected with seditions, which embrace a large proportion of the community; as lately happened in Massachusetts. In every such case, we might expect to see the representation of the people tainted with the same spirit, which had given birth to the offence. And when parties were pretty equally matched, the secret sympathy of the friends and favorers of the condemned person, availing itself of the good nature and weakness of others, might frequently bestow impunity where the terror of an example was necessary. On the other hand, when the sedition had proceeded from causes which had inflamed the resentments of the major party, they might often be found obstinate and inexorable, when policy demanded conduct of forbearance and clemency. But the principal argument for reposing the power of pardoning in this case in the Chief Magistrate is this-In seasons of insurrection or rebellion, there are often critical moments, when a well timed offer of pardon to the insurgents or rebels may restore the tranquility of the commonwealth; and which, if suffered to pass unimproved, it may never be possible afterwards to recall. The dilatory process of convening the Legislature, or one of its branches, for the purpose of obtaining its sanction to the measure, would frequently be the occasion of letting slip the golden opportunity. The loss of a week, a day, an hour, may sometimes be fatal. If it should be observed that a discretionary power with a view to such contingencies might be occasionally confered upon The President; it may be answered in the first place, that it is questionable whether, in a limited constitution, that power could be delegated by law; and in the second place, that it would generally be impolitic before-hand to take any step which might hold out the prospect of impunity. A proceeding of this kind, out of the usual course, would be likely to be construed into an argument of timidity or of weakness, and would have a tendency to embolden guilt.