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Asserting the “Chief Magistrate’s” Prerogatives: Washington, Hamilton, and the Development of the President’s Discretionary Powers

By Kate Brown
January 19, 2015

Kate is a Research Assistant for the Revolutionary War series, a Mount Vernon fellow, and a Ph.D. candidate in the history department at the University of Virginia. Her dissertation is called “Alexander Hamilton and the Development of American Law.”

When George Washington swore the oath of office as the nation’s first president, the sovereign people of the United States bestowed upon him the somewhat vague, but potentially expansive, constitutional powers of a republican executive. At that moment, according to his former aide and soon-to-be Treasury Secretary Alexander Hamilton, Washington became not a king, but instead, America’s “Chief Magistrate.”[1]

What did it mean, to Washington and to Hamilton, for the American president to be the nation’s chief magistrate? While Article II of the U.S. Constitution (the definitive legal source of federal executive power) does not use the term “magistrate” to describe the president’s powers, Americans were familiar with the magisterial office from the inherited English legal traditions that still comprised much of the new nation’s substantive law and legal procedure. English as well as colonial magistrates (called justices of the peace, or JPs) served at the pleasure of the king, and exercised both executive and judicial powers. When acting as the king’s administrators, local JPs levied and collected taxes, for example, and then used the funds for such purposes as maintaining or erecting new community infrastructure. When acting in their judicial capacities, JPs heard and determined cases that included misdemeanors and even some felonies. While these magistrates enjoyed significant autonomy to act as local governors and judges, the king—England’s chief magistrate—and his superior common-law courts oversaw local JPs to be sure that their actions comported with English law.

When Washington and Hamilton considered the president as America’s chief magistrate, they, too, thought of federal executive power as comprised partly of administrative energy and decisive action, and partly of judicial-like discretion. To be sure, both Washington and his Treasury Secretary expected most executive actions to be reviewable in federal court. Yet, just as the British king possessed mighty prerogatives that allowed him to do as he pleased, without any oversight, so too did the American president. During the first years of Washington’s administration, Washington and Hamilton helped to assert and to defend these presidential prerogatives, and in doing so, they set crucial precedents about the nature and scope of the president’s discretionary authority.

In his Federalist essays, Hamilton gave considerable discussion to two of the president’s Article II prerogative powers—pardoning and treaty-making—that Washington would exercise, sometimes controversially, while in office. Hamilton referred to the president’s judge-like pardoning power as a “benign prerogative” required by “humanity and good policy,” and instituted primarily “for the mitigation of the rigor of the law”—especially “in seasons of insurrection.”[2] Hamilton was particularly prescient here, as President Washington made shrewd political use of his pardoning power in the aftermath of the 1794 Whiskey Insurrection. After the Pennsylvania Circuit Court tried, convicted, and sentenced rebel leaders Philip Vigol and John Mitchell to hang, Washington issued stays of execution and then pardons to spare the convicts’ lives.[3] Washington strategically employed his pardoning prerogative to demonstrate the fair-mindedness and mercy of the national government after he enforced the legitimacy of federal law.[4]

Hamilton also detailed the executive’s treaty-making powers, a discretionary authority unto itself, as the president made the decision to enter into a contract with another sovereign. After the parties involved drew up their agreement, only then would the Senate ratify the contract. However, like judges did when interpreting statutory law, the president would also have to interpret the terms of existing treaties, and act on his conclusions. This discretionary authority to interpret law and to act accordingly has become an integral part of executive power, and yet it sparked fierce public outcry during the 1793 neutrality crisis. In defense of Washington’s Neutrality Proclamation, Secretary Hamilton became the first and foremost expounder of Washington’s discretion to interpret the law.

In the first of his four Pacificus essays, Hamilton defended Washington’s issuance of the Neutrality Proclamation by demonstrating that inherent in the president’s power to execute the law is the necessary authority to interpret it. Washington sought to faithfully execute his obligation to keep the nation at peace (until Congress declared war on either the French or the British), and so “in fulfilling that duty, [the executive] must necessarily possess a right of judging what is the nature of the obligations which the treaties of the Country impose on the Government.”[5] In this case, Washington and his cabinet adjudged that American neutrality did not violate the existing provisions of the 1778 Franco-American Treaty of Amity and Commerce.

In addition, the Treasury Secretary concluded his exposition by forcefully articulating the discretionary authority inherent in American executive power, and exercised properly by President Washington. Hamilton declared:

The President is the constitutional EXECUTOR of the laws. Our Treaties and the laws of Nations form a part of the law of the land. He who is to execute the laws must first judge for himself of their meaning. In order to the observance of that conduct…it was necessary for the President to judge for himself whether there was any thing in our treaties incompatible with an adherence to neutrality. Having judged that there was not….it was [Washington’s] duty, as Executor of the laws, to proclaim the neutrality of the Nation…”[6]

Because Washington acted boldly by unilaterally interpreting the terms of the existing treaty with France and by issuing the Neutrality Proclamation in response, he set a precedent for decisive executive action in foreign-policy matters. And by supplying a well-crafted legal argument to support Washington’s discretionary authority, Hamilton provided a definitive statement of the contours of the executive’s prerogative to interpret the law that persists to this day, influencing our modern understanding of executive authority.[7]

While Washington and Hamilton collaborated frequently, and successfully, throughout much of their professional lives, their precedent-setting efforts to assert, develop, and define Article II executive power remains one of their most significant achievements. Although the U.S. Constitution enumerates presidential powers, Washington and Hamilton gave practical and legal meaning to this text, inseparably mixing executive action and judicial-like discretion in the tradition of the English magistrate. In doing so, neither Washington nor Hamilton sought to put the president above or beyond the law; instead, they aimed to set a precedent for the vigorous exercise of executive prerogative power first by asserting those constitutional prerogatives and then by defining and defending them through reasonable, though expansive, interpretations of Article II’s text. Through their efforts, George Washington and Alexander Hamilton asserted inherited, English legal traditions within the secure confines of a republican constitutional framework; in doing so, they adapted the discretionary authority of a “Chief Magistrate” to the office of the President of the United States.


Notes

[1] Hamilton refers to the President as the “Chief Magistrate” through his Federalist essays on executive power and in his administrative correspondence as Treasury Secretary.

[2] Federalist No. 74.

[3] See “Philip Vigol Stay of Execution” (June 16, 1795), The Papers of George Washington, Presidential Series, 18 (forthcoming) as well as Washington’s stay of execution for John Mitchell in DNA: RG 59, Copies of Presidential Pardons and Remissions, 1794–1893. Washington’s pardons for Mitchell and Vigol can be found at DNA: RG 59, Copies of Presidential Pardons and Remissions, 1794–1893.

[4] Washington had no doubt that he, as chief magistrate, had a constitutional duty to prevent western Pennsylvanian tax payers from dodging the federal tax on spirits that incited the so-called Whiskey Insurrection. In 1792, Washington wrote to Hamilton about a draft presidential proclamation to discourage opposition to the federal excise and affirmed:  “When…lenient & temporizing means have been used, and serve only to increase the disorder, longer forbearance would become unjustifiable remissness, and a neglect of that duty which is enjoined to the President. I can have no hesitation, therefore, under this view of the case to adopt such legal measures to check the disorderly opposition which is given to the executive of the Laws laying a duty on distilled spirits, as the Constitution has invested the Executive with; and however painful the measure would be, if the Proclamation should fail to produce the effect desired, ulterior arrangements must be made to support the Laws, & to prevent the prostration of Government.” (Washington to Hamilton (September 17, 1792 [first letter]), The Papers of George Washington, Presidential Series, 11: 125.) Washington published the final draft of his proclamation on August 7, 1794 (See “Proclamation,” in The Papers of George Washington, Presidential Series, 16: 531-37).

[5] Pacificus No. 1 (June 29, 1793), in Harold C. Syrett, ed., The Papers of Alexander Hamilton, vol. 15 (New York: Columbia University Press, 1969), 40.  Emphasis added.

[6] Ibid, 43. Emphasis added.

[7] When reflecting on Hamilton’s contributions to constitutional law, legal scholar William R. Casto carefully combed through Pacificus’ “careful and lucid argument…grounded in the a structure and actual words of the Constitution,” and concluded: “Simply put, Pacificus No. 1 is one of the best essays ever written on a specific issue of constitutional law.” (See Foreign Affairs and the Constitution in the Age of Fighting Sail (Columbia: University of South Carolina Press, 2006), 82.)