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 party1; 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
Constitution2, 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. [Alexander Hamilton]- See CATO, № V.
- Article I, section 3, clause I.