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 attribute 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 insidiouly, 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 licences 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
pretence 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 (footnote 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 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
(footnote 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 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, 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.
Signed "PUBLIUS"
Footnotes Explained:
Footnote Number 1. See CATO, No. V.
Footnote Number 2. Article 1, section 3, clause 1.
|