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.