The Executive Department

From the New York Packet.

Tuesday, March 11, 1788.

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

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 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 ?? 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: gFirst. 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.

1 See CATO, No. V.