Federalist Paper No. 67
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 atten ed 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 party1; 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 ?? 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
Constitution2, 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.'' Secondly. 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. Thirdly. 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 lastly, 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.
(Continue to Page 68)
1 See CATO, No. V.
2 Article I, section 3, clause I.
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