1787 Federalist 67 · Founding Made Plain

11787 Federalist No. 67

2The Executive Department

3From the New York Packet.

4Tuesday, March 11, 1788.

5HAMILTON

6To the People of the State of New York:

7THE constitution of the executive department

8 of the proposed government,

9 claims next our attention.

10There is hardly any part of the system

11 which could have been atten ed with greater difficulty

12 in the arrangement of it than this;

13 and there is, perhaps, none

14 which has been inveighed against with less candor

15 or criticised with less judgment.

16Here the writers against the Constitution

17 seem to have taken pains

18 to signalize their talent of misrepresentation.

19Calculating upon the aversion of the people to monarchy,

20 they have endeavored to enlist all their jealousies

21 and apprehensions

22 in opposition to the intended President

23 of the United States;

24 not merely as the embryo,

25 but as the full-grown progeny,

26 of that detested parent.

27To establish the pretended affinity,

28 they have not scrupled to draw resources

29 even from the regions of fiction.

30The authorities of a magistrate,

31 in few instances greater,

32 in some instances less,

33 than those of a governor of New York,

34 have been magnified into more than royal prerogatives.

35He has been decorated with attributes

36 superior in dignity and splendor

37 to those of a king of Great Britain.

38He has been shown to us

39 with the diadem sparkling on his brow

40 and the imperial purple flowing in his train.

41He has been seated on a throne

42 surrounded with minions and mistresses,

43 giving audience to the envoys of foreign potentates,

44 in all the supercilious pomp of majesty.

45The images of Asiatic despotism and voluptuousness

46 have scarcely been wanting

47 to crown the exaggerated scene.

48We have been taught to tremble

49 at the terrific visages of murdering janizaries,

50 and to blush at the unveiled mysteries

51 of a future seraglio.

52Attempts so extravagant as these to disfigure

53 or, it might rather be said,

54 to metamorphose the object,

55 render it necessary to take an accurate view

56 of its real nature and form:

57 in order as well to ascertain its true aspect

58 and genuine appearance,

59 as to unmask the disingenuity

60 and expose the fallacy

61 of the counterfeit resemblances

62 which have been so insidiously,

63 as well as industriously, propagated.

64In the execution of this task,

65 there is no man who would not find it an arduous effort

66 either to behold with moderation,

67 or to treat with seriousness,

68 the devices, not less weak than wicked,

69 which have been contrived

70 to pervert the public opinion

71 in relation to the subject.

72They so far exceed the usual though unjustifiable licenses

73 of party artifice,

74 that even in a disposition

75 the most candid and tolerant,

76 they must force the sentiments

77 which favor an indulgent construction

78 of the conduct of political adversaries

79 to give place to a voluntary

80 and unreserved indignation.

81It is impossible not to bestow the imputation

82 of deliberate imposture and deception

83 upon the gross pretense of a similitude

84 between a king of Great Britain

85 and a magistrate of the character marked out

86 for that of the President of the United States.

87It is still more impossible to withhold that imputation

88 from the rash and barefaced expedients

89 which have been employed to give success

90 to the attempted imposition.

91In one instance, which I cite as a sample

92 of the general spirit,

93 the temerity has proceeded so far

94 as to ascribe to the President of the United States

95 a power which by the instrument reported

96 is EXPRESSLY allotted

97 to the Executives of the individual States.

98I mean the power of filling casual vacancies

99 in the Senate.

100This bold experiment upon the discernment

101 of his countrymen

102 has been hazarded by a writer who

103 (whatever may be his real merit)

104 has had no inconsiderable share

105 in the applauses of his party; 1

106 and who, upon this false and unfounded suggestion,

107 has built a series of observations

108 equally false and unfounded.

109Let him now be confronted with the evidence of the fact,

110 and let him, if he be able,

111 justify or extenuate the shameful outrage

112 he has offered to the dictates of truth

113 and to the rules of fair dealing.

114The second clause of the second section

115 of the second article

116 empowers the President of the United States

117 "to nominate, and by and with the advice

118 and consent of the Senate,

119 to appoint ambassadors,

120 other public ministers and consuls,

121 judges of the Supreme Court,

122 and all other OFFICERS of United States

123 whose appointments are NOT in the Constitution

124 OTHERWISE PROVIDED FOR,

125 and WHICH SHALL BE ESTABLISHED BY LAW."

126Immediately after this clause follows another

127 in these words:

128 "The President shall have power

129 to fill up ALL VACANCIES

130 that may happen DURING THE RECESS OF THE SENATE,

131 by granting commissions

132 which shall EXPIRE

133 AT THE END OF THEIR NEXT SESSION."

134It is from this last provision

135 that the pretended power of the President

136 to fill vacancies in the Senate has been deduced.

137A slight attention to the connection of the clauses,

138 and to the obvious meaning of the terms,

139 will satisfy us that the deduction

140 is not even colorable.

141The first of these two clauses, it is clear,

142 only provides a mode for appointing such officers,

143 "whose appointments are NOT OTHERWISE PROVIDED FOR

144 in the Constitution,

145 and which SHALL BE ESTABLISHED BY LAW";

146 of course it cannot extend

147 to the appointments of senators,

148 whose appointments are OTHERWISE PROVIDED FOR

149 in the Constitution, 2

150 and who are ESTABLISHED BY THE CONSTITUTION,

151 and will not require a future establishment by law.

152This position will hardly be contested.

153The last of these two clauses, it is equally clear,

154 cannot be understood to comprehend

155 the power of filling vacancies in the Senate,

156 for the following reasons:

157First. The relation in which that clause

158 stands to the other,

159 which declares the general mode

160 of appointing officers of the United States,

161 denotes it to be nothing more than a supplement

162 to the other,

163 for the purpose of establishing

164 an auxiliary method of appointment,

165 in cases to which the general method

166 was inadequate.

167The ordinary power of appointment is confined

168 to the President and Senate JOINTLY,

169 and can therefore only be exercised

170 during the session of the Senate;

171 but as it would have been improper

172 to oblige this body to be continually in session

173 for the appointment of officers

174 and as vacancies might happen IN THEIR RECESS,

175 which it might be necessary

176 for the public service to fill without delay,

177 the succeeding clause is evidently intended

178 to authorize the President, SINGLY,

179 to make temporary appointments

180 "during the recess of the Senate,

181 by granting commissions

182 which shall expire

183 at the end of their next session."

184Secondly. If this clause is to be considered

185 as supplementary to the one which precedes,

186 the VACANCIES of which it speaks

187 must be construed to relate to the "officers"

188 described in the preceding one;

189 and this, we have seen,

190 excludes from its description

191 the members of the Senate.

192Thirdly. The time within which the power is to operate,

193 "during the recess of the Senate,"

194 and the duration of the appointments,

195 "to the end of the next session" of that body,

196 conspire to elucidate the sense of the provision,

197 which, if it had been intended

198 to comprehend senators,

199 would naturally have referred

200 the temporary power of filling vacancies

201 to the recess of the State legislatures,

202 who are to make the permanent appointments,

203 and not to the recess of the national Senate,

204 who are to have no concern in those appointments;

205 and would have extended the duration in office

206 of the temporary senators

207 to the next session

208 of the legislature of the State,

209 in whose representation the vacancies had happened,

210 instead of making it to expire

211 at the end of the ensuing session

212 of the national Senate.

213The circumstances of the body authorized

214 to make the permanent appointments would, of course,

215 have governed the modification of a power

216 which related to the temporary appointments;

217 and as the national Senate is the body,

218 whose situation is alone contemplated

219 in the clause upon which the suggestion

220 under examination has been founded,

221 the vacancies to which it alludes

222 can only be deemed to respect those officers

223 in whose appointment that body

224 has a concurrent agency with the President.

225But lastly, the first and second clauses

226 of the third section of the first article,

227 not only obviate all possibility of doubt,

228 but destroy the pretext of misconception.

229The former provides, that

230 "the Senate of the United States shall be composed

231 of two Senators from each State,

232 chosen BY THE LEGISLATURE THEREOF for six years";

233 and the latter directs, that,

234 "if vacancies in that body should happen

235 by resignation or otherwise,

236 DURING THE RECESS OF THE LEGISLATURE OF ANY STATE,

237 the Executive THEREOF may make

238 temporary appointments

239 until the NEXT MEETING OF THE LEGISLATURE,

240 which shall then fill such vacancies."

241Here is an express power given,

242 in clear and unambiguous terms,

243 to the State Executives,

244 to fill casual vacancies in the Senate,

245 by temporary appointments;

246 which not only invalidates the supposition,

247 that the clause before considered

248 could have been intended to confer that power

249 upon the President of the United States,

250 but proves that this supposition,

251 destitute as it is even

252 of the merit of plausibility,

253 must have originated in an intention

254 to deceive the people,

255 too palpable to be obscured by sophistry,

256 too atrocious to be palliated by hypocrisy.

257I have taken the pains to select this instance

258 of misrepresentation,

259 and to place it in a clear and strong light,

260 as an unequivocal proof

261 of the unwarrantable arts which are practiced

262 to prevent a fair and impartial judgment

263 of the real merits of the Constitution

264 submitted to the consideration of the people.

265Nor have I scrupled, in so flagrant a case,

266 to allow myself a severity of animadversion

267 little congenial with the general spirit

268 of these papers.

269I hesitate not to submit it

270 to the decision of any candid and honest adversary

271 of the proposed government,

272 whether language can furnish epithets

273 of too much asperity,

274 for so shameless and so prostitute an attempt

275 to impose on the citizens of America.

276PUBLIUS.

2771 See CATO, No. V.

2782 Article I, section 3, clause I.