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states. I mean the power of filling casual vacancios in the senate.
This bold experiment upon the discernment of his country. men, has been hazarded by the writer who (whatever may be his real morit) has had no inconsiderable share in the applauses of his party;* 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 the 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 connexion of the clauses, and to the obvious meaning of the terms, will satisfy us, that the dcduction is not even colourable.
The first of these two clausos, it is clear, only providos a modo for appointing such officers, "whoso appointments aro not otherwise provided for in the constitution, and which shall be established by law;" of course it cannot extend to the appointment of senators; whose appointments are otherwise provided for in the constitution,t 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
* See Cato, No. 6.
Article 1. Sec. 3. Clause 1.
understood to comprehend the power of filling vacancies in the henate, 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 confided to the president and senate jointly, and can therefore only be exercised during the session of the sonate: but, as it would havo beon 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 should expire at the end of their next session." Second. If this clauso 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, wo have seen, excludes from its description the members of the senate. Third. 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 bavo no concern in thoso appointments; and would have extondod tho duration in office of tho tomporary sonators 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, obviate all possibility of doubt. 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 tho 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." IIoro is an express power given, in clear and unambiguous terms, to the state executives, to fill the 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 misrepresontation, and to place it in a clear and strong light, as an unequivocal proof of the unwarrantable arts, which are practised, to prevent a fair and impartial judgment of the real morits of the plan submitted to the consideration of the people. Nor have I scrupled in so flagrant a caso, to indulge a severity of animadvorsion, little congenial with the general spirit of
I hesitate not to submit it to the decision of any candid and honest adversary of the proposed government, whether language can furnish cpithets of too much asperity, for so shameless and so prostituto an attempt to impose on the citizens of America.
NEW YORK, MARCH 14, 1788.
THE VIEW OF THE CONSTITUTION OF THE PRESIDENT CONTINUED,
IN RELATION TO THE MODE OF APPOINTMENT.
The mode of appointment of the chief magistrate of the United States, is almost the only part of the system, of any consequence, which has escaped without severe censure, or which has received the slightest mark of approbation from its opponents. The most plausible of these, who has appeared in print, bas ovon deigned to admit, that the election of the president is pretty well guarded.* I vonture somowbat further, and hesitate not to affirm, that if the manner of it be not perfoot, it is at least excellent. It unites in an eminent degree all the advantages, the union of which was to be wished for.
It was desirable, that the sense of the people should operate in the choice of the person to whom so important a trust was to be confided. This end will be answered by committing the right of making it, not to any pre-established body, but to men, chosen by the people for the special purpose, and at the particular conjuncture.
It was equally desirable, that the immediate election should be made by men most capable of analizing the qualities adapted to the station, and acting under circumstances favourable to
* Vide Federal Farmer,
deliberation, and to a judicious combination of all the reasons and inducements that were proper to govern their choice. A small number of persons, selected by their fellow citizens from the general mass, will be most likely to possess the information and discernment requisite to so complicated an investigation.
It was also peculiarly desirable, to afford as little opportunity as possiblo to tumult and disorder. This evil was not least to bo drcadod in the election of a magistrate, who was to have so important an agency in the administration of the government. But the precautions which have been so happily concerted in the system under consideration, promise an effectual security against this mischief. The choice of several, to form an intermediate body of electors, will be much less apt to convulse the community, with any extraordinary or violent movements, than the choice of one, who was himself to be the final object of the public wishes. And as the electors, chosen in each state, are to assemble and vote in the state in which they are chosen, this detached and divided-situation wilt-expose them much less to heats and ferments, that might be communicated from them to the people, than if they were all-to-be convened at one time, in one place.
Nothing was more to be desired, than that every practicable obstacle should be opposed to cabal, intrigue, and corruption, Thoso most deadly adversaries of ropublican govornmont, might naturally have been expected to make their approaches from more than one quarter, but chiefly from the desire in foreign powers to gain an improper ascendant in our councils. How could they better gratify this, than by raising a creature of their own to the chief magistracy of the union? But the convention have guarded against all danger of this sort, with the most provident and judicious attention. They have not made the appointment of the president to depend on pre-existing bodies of men, wlid might be tampered with
beforehand to prostitute their votes; but they have referred it in the first instance to an immediate act of the people of America, to bo exerted in the choice of persons for the temporary and solo