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THE President is "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 otherwise provided for in the
Constitution. But the Congress may by law vest the appointment of such
inferior officers as they think proper, in the President alone, or in
the courts of law, or in the heads of departments. The President shall
have power to fill up all vacancies which may happen during the recess
of the Senate, by granting commissions which shall expire at the end of
their next session."

It has been observed in a former paper, that "the true test of a good
government is its aptitude and tendency to produce a good
administration." If the justness of this observation be admitted, the
mode of appointing the officers of the United States contained in the
foregoing clauses, must, when examined, be allowed to be entitled to
particular commendation. It is not easy to conceive a plan better
calculated than this to promote a judicious choice of men for filling
the offices of the Union; and it will not need proof, that on this point
must essentially depend the character of its administration.

It will be agreed on all hands, that the power of appointment, in
ordinary cases, ought to be modified in one of three ways. It ought
either to be vested in a single man, or in a select assembly of a
moderate number; or in a single man, with the concurrence of such an
assembly. The exercise of it by the people at large will be readily
admitted to be impracticable; as waiving every other consideration, it
would leave them little time to do anything else. When, therefore,
mention is made in the subsequent reasonings of an assembly or body of
men, what is said must be understood to relate to a select body or
assembly, of the description already given. The people collectively,
from their number and from their dispersed situation, cannot be
regulated in their movements by that systematic spirit of cabal and
intrigue, which will be urged as the chief objections to reposing the
power in question in a body of men.

Those who have themselves reflected upon the subject, or who have
attended to the observations made in other parts of these papers, in
relation to the appointment of the President, will, I presume, agree to
the position, that there would always be great probability of having the
place supplied by a man of abilities, at least respectable. Premising
this, I proceed to lay it down as a rule, that one man of discernment is
better fitted to analyze and estimate the peculiar qualities adapted to
particular offices, than a body of men of equal or perhaps even of
superior discernment.

The sole and undivided responsibility of one man will naturally beget a
livelier sense of duty and a more exact regard to reputation. He will,
on this account, feel himself under stronger obligations, and more
interested to investigate with care the qualities requisite to the
stations to be filled, and to prefer with impartiality the persons who
may have the fairest pretensions to them. He will have fewer personal
attachments to gratify, than a body of men who may each be supposed to
have an equal number; and will be so much the less liable to be misled
by the sentiments of friendship and of affection. A single well-directed
man, by a single understanding, cannot be distracted and warped by that
diversity of views, feelings, and interests, which frequently distract
and warp the resolutions of a collective body. There is nothing so apt
to agitate the passions of mankind as personal considerations whether
they relate to ourselves or to others, who are to be the objects of our
choice or preference. Hence, in every exercise of the power of
appointing to offices, by an assembly of men, we must expect to see a
full display of all the private and party likings and dislikes,
partialities and antipathies, attachments and animosities, which are
felt by those who compose the assembly. The choice which may at any time
happen to be made under such circumstances, will of course be the result
either of a victory gained by one party over the other, or of a
compromise between the parties. In either case, the intrinsic merit of
the candidate will be too often out of sight. In the first, the
qualifications best adapted to uniting the suffrages of the party, will
be more considered than those which fit the person for the station. In
the last, the coalition will commonly turn upon some interested
equivalent: "Give us the man we wish for this office, and you shall have
the one you wish for that." This will be the usual condition of the
bargain. And it will rarely happen that the advancement of the public
service will be the primary object either of party victories or of party
negotiations.

The truth of the principles here advanced seems to have been felt by the
most intelligent of those who have found fault with the provision made,
in this respect, by the convention. They contend that the President
ought solely to have been authorized to make the appointments under the
federal government. But it is easy to show, that every advantage to be
expected from such an arrangement would, in substance, be derived from
the power of nomination, which is proposed to be conferred upon him;
while several disadvantages which might attend the absolute power of
appointment in the hands of that officer would be avoided. In the act of
nomination, his judgment alone would be exercised; and as it would be
his sole duty to point out the man who, with the approbation of the
Senate, should fill an office, his responsibility would be as complete
as if he were to make the final appointment. There can, in this view, be
no difference between nominating and appointing. The same motives which
would influence a proper discharge of his duty in one case, would exist
in the other. And as no man could be appointed but on his previous
nomination, every man who might be appointed would be, in fact, his
choice.

But might not his nomination be overruled? I grant it might, yet this
could only be to make place for another nomination by himself. The
person ultimately appointed must be the object of his preference, though
perhaps not in the first degree. It is also not very probable that his
nomination would often be overruled. The Senate could not be tempted, by
the preference they might feel to another, to reject the one proposed;
because they could not assure themselves, that the person they might
wish would be brought forward by a second or by any subsequent
nomination. They could not even be certain, that a future nomination
would present a candidate in any degree more acceptable to them; and as
their dissent might cast a kind of stigma upon the individual rejected,
and might have the appearance of a reflection upon the judgment of the
chief magistrate, it is not likely that their sanction would often be
refused, where there were not special and strong reasons for the
refusal.

To what purpose then require the co-operation of the Senate? I answer,
that the necessity of their concurrence would have a powerful, though,
in general, a silent operation. It would be an excellent check upon a
spirit of favoritism in the President, and would tend greatly to prevent
the appointment of unfit characters from State prejudice, from family
connection, from personal attachment, or from a view to popularity. In
addition to this, it would be an efficacious source of stability in the
administration.

It will readily be comprehended, that a man who had himself the sole
disposition of offices, would be governed much more by his private
inclinations and interests, than when he was bound to submit the
propriety of his choice to the discussion and determination of a
different and independent body, and that body an entier branch of the
legislature. The possibility of rejection would be a strong motive to
care in proposing. The danger to his own reputation, and, in the case of
an elective magistrate, to his political existence, from betraying a
spirit of favoritism, or an unbecoming pursuit of popularity, to the
observation of a body whose opinion would have great weight in forming
that of the public, could not fail to operate as a barrier to the one
and to the other. He would be both ashamed and afraid to bring forward,
for the most distinguished or lucrative stations, candidates who had no
other merit than that of coming from the same State to which he
particularly belonged, or of being in some way or other personally
allied to him, or of possessing the necessary insignificance and pliancy
to render them the obsequious instruments of his pleasure.

To this reasoning it has been objected that the President, by the
influence of the power of nomination, may secure the complaisance of the
Senate to his views. This supposition of universal venalty in human
nature is little less an error in political reasoning, than the
supposition of universal rectitude. The institution of delegated power
implies, that there is a portion of virtue and honor among mankind,
which may be a reasonable foundation of confidence; and experience
justifies the theory. It has been found to exist in the most corrupt
periods of the most corrupt governments. The venalty of the British
House of Commons has been long a topic of accusation against that body,
in the country to which they belong as well as in this; and it cannot be
doubted that the charge is, to a considerable extent, well founded. But
it is as little to be doubted, that there is always a large proportion
of the body, which consists of independent and public-spirited men, who
have an influential weight in the councils of the nation. Hence it is
(the present reign not excepted) that the sense of that body is often
seen to control the inclinations of the monarch, both with regard to men
and to measures. Though it might therefore be allowable to suppose that
the Executive might occasionally influence some individuals in the
Senate, yet the supposition, that he could in general purchase the
integrity of the whole body, would be forced and improbable. A man
disposed to view human nature as it is, without either flattering its
virtues or exaggerating its vices, will see sufficient ground of
confidence in the probity of the Senate, to rest satisfied, not only
that it will be impracticable to the Executive to corrupt or seduce a
majority of its members, but that the necessity of its co-operation, in
the business of appointments, will be a considerable and salutary
restraint upon the conduct of that magistrate. Nor is the integrity of
the Senate the only reliance. The Constitution has provided some
important guards against the danger of executive influence upon the
legislative body: it declares that "No senator or representative shall
during the time for which he was elected, be appointed to any civil
office under the United States, which shall have been created, or the
emoluments whereof shall have been increased, during such time; and no
person, holding any office under the United States, shall be a member of
either house during his continuance in office."

PUBLIUS

____

FEDERALIST No. 77

The Appointing Power Continued and Other Powers of the Executive
Considered
From the Independent Journal.
Wednesday, April 2, 1788.

HAMILTON

To the People of the State of New York:

IT HAS been mentioned as one of the advantages to be expected from the
co-operation of the Senate, in the business of appointments, that it
would contribute to the stability of the administration. The consent of
that body would be necessary to displace as well as to appoint. A change
of the Chief Magistrate, therefore, would not occasion so violent or so
general a revolution in the officers of the government as might be
expected, if he were the sole disposer of offices. Where a man in any
station had given satisfactory evidence of his fitness for it, a new
President would be restrained from attempting a change in favor of a
person more agreeable to him, by the apprehension that a discountenance
of the Senate might frustrate the attempt, and bring some degree of
discredit upon himself. Those who can best estimate the value of a
steady administration, will be most disposed to prize a provision which
connects the official existence of public men with the approbation or
disapprobation of that body which, from the greater permanency of its
own composition, will in all probability be less subject to inconstancy
than any other member of the government.

To this union of the Senate with the President, in the article of
appointments, it has in some cases been suggested that it would serve to
give the President an undue influence over the Senate, and in others
that it would have an opposite tendency -- a strong proof that neither
suggestion is true.

To state the first in its proper form, is to refute it. It amounts to
this: the President would have an improper influence over the Senate,
because the Senate would have the power of restraining him. This is an
absurdity in terms. It cannot admit of a doubt that the entire power of
appointment would enable him much more effectually to establish a
dangerous empire over that body, than a mere power of nomination subject
to their control.

Let us take a view of the converse of the proposition: "the Senate would
influence the Executive." As I have had occasion to remark in several
other instances, the indistinctness of the objection forbids a precise
answer. In what manner is this influence to be exerted? In relation to
what objects? The power of influencing a person, in the sense in which
it is here used, must imply a power of conferring a benefit upon him.
How could the Senate confer a benefit upon the President by the manner
of employing their right of negative upon his nominations? If it be said
they might sometimes gratify him by an acquiescence in a favorite
choice, when public motives might dictate a different conduct, I answer,
that the instances in which the President could be personally interested
in the result, would be too few to admit of his being materially
affected by the compliances of the Senate. The POWER which can originate
the disposition of honors and emoluments, is more likely to attract than
to be attracted by the POWER which can merely obstruct their course. If
by influencing the President be meant restraining him, this is precisely
what must have been intended. And it has been shown that the restraint
would be salutary, at the same time that it would not be such as to
destroy a single advantage to be looked for from the uncontrolled agency
of that Magistrate. The right of nomination would produce all the [good,
without the ill.][E1] [good of that of appointment, and would in a great
measure avoid its evils.][E1]

Upon a comparison of the plan for the appointment of the officers of the
proposed government with that which is established by the constitution
of this State, a decided preference must be given to the former. In that
plan the power of nomination is unequivocally vested in the Executive.
And as there would be a necessity for submitting each nomination to the
judgment of an entire branch of the legislature, the circumstances
attending an appointment, from the mode of conducting it, would
naturally become matters of notoriety; and the public would be at no
loss to determine what part had been performed by the different actors.
The blame of a bad nomination would fall upon the President singly and
absolutely. The censure of rejecting a good one would lie entirely at
the door of the Senate; aggravated by the consideration of their having
counteracted the good intentions of the Executive. If an ill appointment
should be made, the Executive for nominating, and the Senate for
approving, would participate, though in different degrees, in the
opprobrium and disgrace.

The reverse of all this characterizes the manner of appointment in this
State. The council of appointment consists of from three to five
persons, of whom the governor is always one. This small body, shut up in
a private apartment, impenetrable to the public eye, proceed to the
execution of the trust committed to them. It is known that the governor
claims the right of nomination, upon the strength of some ambiguous
expressions in the constitution; but it is not known to what extent, or
in what manner he exercises it; nor upon what occasions he is
contradicted or opposed. The censure of a bad appointment, on account of
the uncertainty of its author, and for want of a determinate object, has
neither poignancy nor duration. And while an unbounded field for cabal
and intrigue lies open, all idea of responsibility is lost. The most
that the public can know, is that the governor claims the right of
nomination; that two out of the inconsiderable number of four men can
too often be managed without much difficulty; that if some of the
members of a particular council should happen to be of an uncomplying
character, it is frequently not impossible to get rid of their
opposition by regulating the times of meeting in such a manner as to
render their attendance inconvenient; and that from whatever cause it
may proceed, a great number of very improper appointments are from time
to time made. Whether a governor of this State avails himself of the
ascendant he must necessarily have, in this delicate and important part
of the administration, to prefer to offices men who are best qualified
for them, or whether he prostitutes that advantage to the advancement of
persons whose chief merit is their implicit devotion to his will, and to
the support of a despicable and dangerous system of personal influence,
are questions which, unfortunately for the community, can only be the
subjects of speculation and conjecture.

Every mere council of appointment, however constituted, will be a
conclave, in which cabal and intrigue will have their full scope. Their
number, without an unwarrantable increase of expense, cannot be large
enough to preclude a facility of combination. And as each member will
have his friends and connections to provide for, the desire of mutual
gratification will beget a scandalous bartering of votes and bargaining
for places. The private attachments of one man might easily be
satisfied; but to satisfy the private attachments of a dozen, or of
twenty men, would occasion a monopoly of all the principal employments
of the government in a few families, and would lead more directly to an
aristocracy or an oligarchy than any measure that could be contrived.
If, to avoid an accumulation of offices, there was to be a frequent
change in the persons who were to compose the council, this would
involve the mischiefs of a mutable administration in their full extent.
Such a council would also be more liable to executive influence than the
Senate, because they would be fewer in number, and would act less
immediately under the public inspection. Such a council, in fine, as a
substitute for the plan of the convention, would be productive of an
increase of expense, a multiplication of the evils which spring from
favoritism and intrigue in the distribution of public honors, a decrease
of stability in the administration of the government, and a diminution
of the security against an undue influence of the Executive. And yet
such a council has been warmly contended for as an essential amendment
in the proposed Constitution.

I could not with propriety conclude my observations on the subject of
appointments without taking notice of a scheme for which there have
appeared some, though but few advocates; I mean that of uniting the
House of Representatives in the power of making them. I shall, however,
do little more than mention it, as I cannot imagine that it is likely to
gain the countenance of any considerable part of the community. A body
so fluctuating and at the same time so numerous, can never be deemed
proper for the exercise of that power. Its unfitness will appear
manifest to all, when it is recollected that in half a century it may
consist of three or four hundred persons. All the advantages of the
stability, both of the Executive and of the Senate, would be defeated by
this union, and infinite delays and embarrassments would be occasioned.
The example of most of the States in their local constitutions
encourages us to reprobate the idea.

The only remaining powers of the Executive are comprehended in giving
information to Congress of the state of the Union; in recommending to
their consideration such measures as he shall judge expedient; in
convening them, or either branch, upon extraordinary occasions; in
adjourning them when they cannot themselves agree upon the time of
adjournment; in receiving ambassadors and other public ministers; in
faithfully executing the laws; and in commissioning all the officers of
the United States.

Except some cavils about the power of convening either house of the
legislature, and that of receiving ambassadors, no objection has been
made to this class of authorities; nor could they possibly admit of any.
It required, indeed, an insatiable avidity for censure to invent
exceptions to the parts which have been excepted to. In regard to the
power of convening either house of the legislature, I shall barely
remark, that in respect to the Senate at least, we can readily discover
a good reason for it. AS this body has a concurrent power with the
Executive in the article of treaties, it might often be necessary to
call it together with a view to this object, when it would be
unnecessary and improper to convene the House of Representatives. As to
the reception of ambassadors, what I have said in a former paper will
furnish a sufficient answer.

We have now completed a survey of the structure and powers of the
executive department, which, I have endeavored to show, combines, as far
as republican principles will admit, all the requisites to energy. The
remaining inquiry is: Does it also combine the requisites to safety, in
a republican sense -- a due dependence on the people, a due
responsibility? The answer to this question has been anticipated in the
investigation of its other characteristics, and is satisfactorily
deducible from these circumstances; from the election of the President
once in four years by persons immediately chosen by the people for that
purpose; and from his being at all times liable to impeachment, trial,
dismission from office, incapacity to serve in any other, and to
forfeiture of life and estate by subsequent prosecution in the common
course of law. But these precautions, great as they are, are not the
only ones which the plan of the convention has provided in favor of the
public security. In the only instances in which the abuse of the
executive authority was materially to be feared, the Chief Magistrate of
the United States would, by that plan, be subjected to the control of a
branch of the legislative body. What more could be desired by an
enlightened and reasonable people?

PUBLIUS

E1. These two alternate endings of this sentence appear in different
editions.

____

FEDERALIST No. 78

The Judiciary Department
From McLEAN'S Edition, New York.
Wednesday, May 28, 1788

HAMILTON

To the People of the State of New York:

WE PROCEED now to an examination of the judiciary department of the
proposed government.

In unfolding the defects of the existing Confederation, the utility and
necessity of a federal judicature have been clearly pointed out. It is
the less necessary to recapitulate the considerations there urged, as
the propriety of the institution in the abstract is not disputed; the
only questions which have been raised being relative to the manner of
constituting it, and to its extent. To these points, therefore, our
observations shall be confined.

The manner of constituting it seems to embrace these several objects:
1st. The mode of appointing the judges. 2d. The tenure by which they are
to hold their places. 3d. The partition of the judiciary authority
between different courts, and their relations to each other.

First. As to the mode of appointing the judges; this is the same with
that of appointing the officers of the Union in general, and has been so
fully discussed in the two last numbers, that nothing can be said here
which would not be useless repetition.

Second. As to the tenure by which the judges are to hold their places;
this chiefly concerns their duration in office; the provisions for their
support; the precautions for their responsibility.

According to the plan of the convention, all judges who may be appointed
by the United States are to hold their offices during good behavior;
which is conformable to the most approved of the State constitutions and
among the rest, to that of this State. Its propriety having been drawn
into question by the adversaries of that plan, is no light symptom of
the rage for objection, which disorders their imaginations and
judgments. The standard of good behavior for the continuance in office
of the judicial magistracy, is certainly one of the most valuable of the
modern improvements in the practice of government. In a monarchy it is
an excellent barrier to the despotism of the prince; in a republic it is
a no less excellent barrier to the encroachments and oppressions of the
representative body. And it is the best expedient which can be devised
in any government, to secure a steady, upright, and impartial
administration of the laws.