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 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.