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The Executive Department
To the People of the State of New York:
There is hardly any part of the system which could have been
atten ed 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 ligislature 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.
Notes:
Hamilton From the New York Packet.
Tuesday, March 11, 1788.
THE constitution of the executive department of the proposed
government, claims next our attention.