The Federalist Papers
contingent power, of deciding the competitions of the most illustrious
citizens of the Union, for the first office in it. It would not perhaps
be rash to predict, that as a mean of influence it will be found to
outweigh all the peculiar attributes of the Senate.
A THIRD objection to the Senate as a court of impeachments, is drawn
from the agency they are to have in the appointments to office. It is
imagined that they would be too indulgent judges of the conduct of men,
in whose official creation they had participated. The principle of this
objection would condemn a practice, which is to be seen in all the State
governments, if not in all the governments with which we are acquainted:
I mean that of rendering those who hold offices during pleasure,
dependent on the pleasure of those who appoint them. With equal
plausibility might it be alleged in this case, that the favoritism of
the latter would always be an asylum for the misbehavior of the former.
But that practice, in contradiction to this principle, proceeds upon
the presumption, that the responsibility of those who appoint, for the
fitness and competency of the persons on whom they bestow their choice,
and the interest they will have in the respectable and prosperous
administration of affairs, will inspire a sufficient disposition to
dismiss from a share in it all such who, by their conduct, shall have
proved themselves unworthy of the confidence reposed in them. Though
facts may not always correspond with this presumption, yet if it be,
in the main, just, it must destroy the supposition that the Senate, who
will merely sanction the choice of the Executive, should feel a bias,
towards the objects of that choice, strong enough to blind them to
the evidences of guilt so extraordinary, as to have induced the
representatives of the nation to become its accusers.
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,
Pennsylvania, and South Carolina, one branch of the legislature is the
court for the trial of impeachments.
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