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- FEDERALIST 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.
- 1 See CATO, No. V.
- 2 Article I, section 3, clause I.
-
-