If any further arguments were necessary to evince the improbability of

such a bias, it might be found in the nature of the agency of the

Senate in the business of appointments.

It will be the office of the President to NOMINATE, and, with the

advice and consent of the Senate, to APPOINT. There will, of course, be

no exertion of CHOICE on the part of the Senate. They may defeat one

choice of the Executive, and oblige him to make another; but they

cannot themselves CHOOSE, they can only ratify or reject the choice of

the President. They might even entertain a preference to some other

person, at the very moment they were assenting to the one proposed,

because there might be no positive ground of opposition to him; and

they could not be sure, if they withheld their assent, that the

subsequent nomination would fall upon their own favorite, or upon any

other person in their estimation more meritorious than the one

rejected. Thus it could hardly happen, that the majority of the Senate

would feel any other complacency towards the object of an appointment

than such as the appearances of merit might inspire, and the proofs of

the want of it destroy.

A FOURTH objection to the Senate in the capacity of a court of

impeachments, is derived from its union with the Executive in the power

of making treaties. This, it has been said, would constitute the

senators their own judges, in every case of a corrupt or perfidious

execution of that trust. After having combined with the Executive in

betraying the interests of the nation in a ruinous treaty, what

prospect, it is asked, would there be of their being made to suffer the

punishment they would deserve, when they were themselves to decide upon

the accusation brought against them for the treachery of which they

have been guilty?

This objection has been circulated with more earnestness and with

greater show of reason than any other which has appeared against this

part of the plan; and yet I am deceived if it does not rest upon an

erroneous foundation.

The security essentially intended by the Constitution against

corruption and treachery in the formation of treaties, is to be sought

for in the numbers and characters of those who are to make them. The

JOINT AGENCY of the Chief Magistrate of the Union, and of two thirds of

the members of a body selected by the collective wisdom of the

legislatures of the several States, is designed to be the pledge for

the fidelity of the national councils in this particular. The

convention might with propriety have meditated the punishment of the

Executive, for a deviation from the instructions of the Senate, or a

want of integrity in the conduct of the negotiations committed to him;

they might also have had in view the punishment of a few leading

individuals in the Senate, who should have prostituted their influence

in that body as the mercenary instruments of foreign corruption: but

they could not, with more or with equal propriety, have contemplated

the impeachment and punishment of two thirds of the Senate, consenting

to an improper treaty, than of a majority of that or of the other

branch of the national legislature, consenting to a pernicious or

unconstitutional law, a principle which, I believe, has never been

admitted into any government. How, in fact, could a majority in the

House of Representatives impeach themselves? Not better, it is evident,

than two thirds of the Senate might try themselves. And yet what reason

is there, that a majority of the House of Representatives, sacrificing

the interests of the society by an unjust and tyrannical act of

legislation, should escape with impunity, more than two thirds of the

Senate, sacrificing the same interests in an injurious treaty with a

foreign power? The truth is, that in all such cases it is essential to

the freedom and to the necessary independence of the deliberations of

the body, that the members of it should be exempt from punishment for

acts done in a collective capacity; and the security to the society

must depend on the care which is taken to confide the trust to proper

hands, to make it their interest to execute it with fidelity, and to

make it as difficult as possible for them to combine in any interest

opposite to that of the public good.

So far as might concern the misbehavior of the Executive in perverting

the instructions or contravening the views of the Senate, we need not

be apprehensive of the want of a disposition in that body to punish the

abuse of their confidence or to vindicate their own authority. We may

thus far count upon their pride, if not upon their virtue. And so far

even as might concern the corruption of leading members, by whose arts

and influence the majority may have been inveigled into measures odious

to the community, if the proofs of that corruption should be

satisfactory, the usual propensity of human nature will warrant us in

concluding that there would be commonly no defect of inclination in the

body to divert the public resentment from themselves by a ready

sacrifice of the authors of their mismanagement and disgrace.

PUBLIUS.

[1] In that of New Jersey, also, the final judiciary authority is in a

branch of the legislature. In New Hampshire, Massachusetts,

Pennsylvanis, and South Carolina, one branch of the legislature is the

court for the trial of impeachments.

THE FEDERALIST.

No. LXVII.

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 ?? 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.” 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 1, section 3, clause 1.

THE FEDERALIST.

No. LXVIII.

The Mode of Electing the President

From the New York Packet.

Friday, March 14, 1788.

HAMILTON

To the People of the State of New York:

The mode of appointment of the Chief Magistrate of the United States is

almost the only part of the system, of any consequence, which has

escaped without severe censure, or which has received the slightest

mark of approbation from its opponents. The most plausible of these,

who has appeared in print, has even deigned to admit that the election

of the President is pretty well guarded.[1] I venture somewhat further,

and hesitate not to affirm, that if the manner of it be not perfect, it

is at least excellent. It unites in an eminent degree all the

advantages, the union of which was to be wished for.

It was desirable that the sense of the people should operate in the

choice of the person to whom so important a trust was to be confided.

This end will be answered by committing the right of making it, not to

any preestablished body, but to men chosen by the people for the

special purpose, and at the particular conjuncture.

It was equally desirable, that the immediate election should be made by

men most capable of analyzing the qualities adapted to the station, and

acting under circumstances favorable to deliberation, and to a

judicious combination of all the reasons and inducements which were

proper to govern their choice. A small number of persons, selected by

their fellow-citizens from the general mass, will be most likely to

possess the information and discernment requisite to such complicated

investigations.

It was also peculiarly desirable to afford as little opportunity as

possible to tumult and disorder. This evil was not least to be dreaded

in the election of a magistrate, who was to have so important an agency

in the administration of the government as the President of the United

States. But the precautions which have been so happily concerted in the

system under consideration, promise an effectual security against this

mischief. The choice of SEVERAL, to form an intermediate body of

electors, will be much less apt to convulse the community with any

extraordinary or violent movements, than the choice of ONE who was

himself to be the final object of the public wishes. And as the

electors, chosen in each State, are to assemble and vote in the State

in which they are chosen, this detached and divided situation will

expose them much less to heats and ferments, which might be

communicated from them to the people, than if they were all to be

convened at one time, in one place.

Nothing was more to be desired than that every practicable obstacle

should be opposed to cabal, intrigue, and corruption. These most deadly

adversaries of republican government might naturally have been expected

to make their approaches from more than one quarter, but chiefly from

the desire in foreign powers to gain an improper ascendant in our

councils. How could they better gratify this, than by raising a

creature of their own to the chief magistracy of the Union? But the

convention have guarded against all danger of this sort, with the most

provident and judicious attention. They have not made the appointment

of the President to depend on any preexisting bodies of men, who might

be tampered with beforehand to prostitute their votes; but they have

referred it in the first instance to an immediate act of the people of

America, to be exerted in the choice of persons for the temporary and

sole purpose of making the appointment. And they have excluded from

eligibility to this trust, all those who from situation might be

suspected of too great devotion to the President in office. No senator,

representative, or other person holding a place of trust or profit

under the United States, can be of the numbers of the electors. Thus

without corrupting the body of the people, the immediate agents in the

election will at least enter upon the task free from any sinister bias.

Their transient existence, and their detached situation, already taken

notice of, afford a satisfactory prospect of their continuing so, to

the conclusion of it. The business of corruption, when it is to embrace

so considerable a number of men, requires time as well as means. Nor

would it be found easy suddenly to embark them, dispersed as they would

be over thirteen States, in any combinations founded upon motives,

which though they could not properly be denominated corrupt, might yet

be of a nature to mislead them from their duty.

Another and no less important desideratum was, that the Executive

should be independent for his continuance in office on all but the

people themselves. He might otherwise be tempted to sacrifice his duty

to his complaisance for those whose favor was necessary to the duration

of his official consequence. This advantage will also be secured, by

making his re-election to depend on a special body of representatives,

deputed by the society for the single purpose of making the important

choice.

All these advantages will happily combine in the plan devised by the

convention; which is, that the people of each State shall choose a

number of persons as electors, equal to the number of senators and

representatives of such State in the national government, who shall

assemble within the State, and vote for some fit person as President.

Their votes, thus given, are to be transmitted to the seat of the

national government, and the person who may happen to have a majority

of the whole number of votes will be the President. But as a majority

of the votes might not always happen to centre in one man, and as it

might be unsafe to permit less than a majority to be conclusive, it is

provided that, in such a contingency, the House of Representatives

shall select out of the candidates who shall have the five highest

number of votes, the man who in their opinion may be best qualified for

the office.

The process of election affords a moral certainty, that the office of

President will never fall to the lot of any man who is not in an

eminent degree endowed with the requisite qualifications. Talents for

low intrigue, and the little arts of popularity, may alone suffice to

elevate a man to the first honors in a single State; but it will

require other talents, and a different kind of merit, to establish him

in the esteem and confidence of the whole Union, or of so considerable

a portion of it as would be necessary to make him a successful

candidate for the distinguished office of President of the United

States. It will not be too strong to say, that there will be a constant

probability of seeing the station filled by characters pre-eminent for

ability and virtue. And this will be thought no inconsiderable

recommendation of the Constitution, by those who are able to estimate

the share which the executive in every government must necessarily have

in its good or ill administration. Though we cannot acquiesce in the

political heresy of the poet who says:

“For forms of government let fools contest

That which is best administered is best,”

yet we may safely pronounce, that the true test of a good government is

its aptitude and tendency to produce a good administration.

The Vice-President is to be chosen in the same manner with the

President; with this difference, that the Senate is to do, in respect

to the former, what is to be done by the House of Representatives, in

respect to the latter.

The appointment of an extraordinary person, as Vice-President, has been

objected to as superfluous, if not mischievous. It has been alleged,

that it would have been preferable to have authorized the Senate to

elect out of their own body an officer answering that description. But

two considerations seem to justify the ideas of the convention in this

respect. One is, that to secure at all times the possibility of a

definite resolution of the body, it is necessary that the President

should have only a casting vote. And to take the senator of any State

from his seat as senator, to place him in that of President of the

Senate, would be to exchange, in regard to the State from which he

came, a constant for a contingent vote. The other consideration is,

that as the Vice-President may occasionally become a substitute for the

President, in the supreme executive magistracy, all the reasons which

recommend the mode of election prescribed for the one, apply with great

if not with equal force to the manner of appointing the other. It is

remarkable that in this, as in most other instances, the objection

which is made would lie against the constitution of this State. We have

a Lieutenant-Governor, chosen by the people at large, who presides in

the Senate, and is the constitutional substitute for the Governor, in

casualties similar to those which would authorize the Vice-President to

exercise the authorities and discharge the duties of the President.

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