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.
FEDERALIST No. 68
The Mode of Electing the President
From The Independent Journal. Wednesday, March 12, 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.(E1)
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.
PUBLIUS
1. Vide federal farmer.
E1. Some editions substitute "desired" for "wished for".
FEDERALIST No. 69
The Real Character of the Executive
From the New York Packet. Friday, March 14, 1788.
HAMILTON
To the People of the State of New York:
I PROCEED now to trace the real characters of the proposed Executive,
as they are marked out in the plan of the convention. This will serve to
place in a strong light the unfairness of the representations which have
been made in regard to it.
The first thing which strikes our attention is, that the executive
authority, with few exceptions, is to be vested in a single magistrate.
This will scarcely, however, be considered as a point upon which any
comparison can be grounded; for if, in this particular, there be
a resemblance to the king of Great Britain, there is not less a
resemblance to the Grand Seignior, to the khan of Tartary, to the Man of
the Seven Mountains, or to the governor of New York.
That magistrate is to be elected for four years; and is to be
re-eligible as often as the people of the United States shall think
him worthy of their confidence. In these circumstances there is a
total dissimilitude between him and a king of Great Britain, who is an
hereditary monarch, possessing the crown as a patrimony descendible
to his heirs forever; but there is a close analogy between him and a
governor of New York, who is elected for three years, and is re-eligible
without limitation or intermission. If we consider how much less time
would be requisite for establishing a dangerous influence in a single
State, than for establishing a like influence throughout the United
States, we must conclude that a duration of four years for the Chief
Magistrate of the Union is a degree of permanency far less to be dreaded
in that office, than a duration of three years for a corresponding
office in a single State.
The President of the United States would be liable to be impeached,
tried, and, upon conviction of treason, bribery, or other high crimes
or misdemeanors, removed from office; and would afterwards be liable to
prosecution and punishment in the ordinary course of law. The person
of the king of Great Britain is sacred and inviolable; there is no
constitutional tribunal to which he is amenable; no punishment to
which he can be subjected without involving the crisis of a national
revolution. In this delicate and important circumstance of personal
responsibility, the President of Confederated America would stand upon
no better ground than a governor of New York, and upon worse ground than
the governors of Maryland and Delaware.
The President of the United States is to have power to return a bill,
which shall have passed the two branches of the legislature, for
reconsideration; and the bill so returned is to become a law, if, upon
that reconsideration, it be approved by two thirds of both houses. The
king of Great Britain, on his part, has an absolute negative upon the
acts of the two houses of Parliament. The disuse of that power for a
considerable time past does not affect the reality of its existence;
and is to be ascribed wholly to the crown's having found the means of
substituting influence to authority, or the art of gaining a majority
in one or the other of the two houses, to the necessity of exerting a
prerogative which could seldom be exerted without hazarding some degree
of national agitation. The qualified negative of the President differs
widely from this absolute negative of the British sovereign; and tallies
exactly with the revisionary authority of the council of revision of
this State, of which the governor is a constituent part. In this respect
the power of the President would exceed that of the governor of New
York, because the former would possess, singly, what the latter shares
with the chancellor and judges; but it would be precisely the same with
that of the governor of Massachusetts, whose constitution, as to this
article, seems to have been the original from which the convention have
copied.