1787 Federalist 77 · Founding Made Plain

11787 Federalist No. 77

2The Appointing Power Continued

3and Other Powers of the Executive Considered

4From the New York Packet.

5Friday, April 4, 1788.

6HAMILTON

7To the People of the State of New York:

8IT HAS been mentioned as one of the advantages

9 to be expected from the co-operation of the Senate,

10 in the business of appointments,

11 that it would contribute to the stability

12 of the administration.

13The consent of that body would be necessary

14 to displace as well as to appoint.

15A change of the Chief Magistrate, therefore,

16 would not occasion so violent

17 or so general a revolution

18 in the officers of the government

19 as might be expected,

20 if he were the sole disposer of offices.

21Where a man in any station

22 had given satisfactory evidence of his fitness for it,

23 a new President would be restrained

24 from attempting a change

25 in favor of a person more agreeable to him,

26 by the apprehension that a discountenance

27 of the Senate

28 might frustrate the attempt,

29 and bring some degree of discredit upon himself.

30Those who can best estimate the value

31 of a steady administration,

32 will be most disposed to prize a provision

33 which connects the official existence of public men

34 with the approbation or disapprobation of that body

35 which, from the greater permanency

36 of its own composition,

37 will in all probability be less subject

38 to inconstancy

39 than any other member of the government.

40To this union of the Senate with the President,

41 in the article of appointments,

42 it has in some cases been suggested

43 that it would serve to give the President

44 an undue influence over the Senate,

45 and in others that it would have

46 an opposite tendency,

47 a strong proof that neither suggestion is true.

48To state the first in its proper form, is to refute it.

49It amounts to this:

50 the President would have an improper INFLUENCE OVER

51 the Senate,

52 because the Senate would have the power

53 of RESTRAINING him.

54This is an absurdity in terms.

55It cannot admit of a doubt

56 that the entire power of appointment

57 would enable him much more effectually

58 to establish a dangerous empire over that body,

59 than a mere power of nomination

60 subject to their control.

61Let us take a view of the converse of the proposition:

62 "the Senate would influence the Executive."

63As I have had occasion to remark

64 in several other instances,

65 the indistinctness of the objection

66 forbids a precise answer.

67In what manner is this influence to be exerted?

68In relation to what objects?

69The power of influencing a person,

70 in the sense in which it is here used,

71 must imply a power of conferring a benefit upon him.

72How could the Senate confer a benefit upon the President

73 by the manner of employing their right of negative

74 upon his nominations?

75If it be said they might sometimes gratify him

76 by an acquiescence in a favorite choice,

77 when public motives might dictate

78 a different conduct,

79 I answer, that the instances

80 in which the President could be

81 personally interested

82 in the result,

83 would be too few to admit of his being

84 materially affected

85 by the compliances of the Senate.

86The POWER which can ORIGINATE

87 the disposition of honors and emoluments,

88 is more likely to attract

89 than to be attracted by the POWER

90 which can merely obstruct their course.

91If by influencing the President be meant RESTRAINING him,

92 this is precisely what must have been intended.

93And it has been shown that the restraint would be salutary,

94 at the same time that it would not be such

95 as to destroy a single advantage

96 to be looked for from the uncontrolled agency

97 of that Magistrate.

98The right of nomination would produce

99 all the good of that of appointment,

100 and would in a great measure avoid its evils.

101Upon a comparison of the plan

102 for the appointment of the officers

103 of the proposed government

104 with that which is established

105 by the constitution of this State,

106 a decided preference must be given to the former.

107In that plan the power of nomination

108 is unequivocally vested in the Executive.

109And as there would be a necessity

110 for submitting each nomination

111 to the judgment of an entire branch

112 of the legislature,

113 the circumstances attending an appointment,

114 from the mode of conducting it,

115 would naturally become matters of notoriety;

116 and the public would be at no loss to determine

117 what part had been performed

118 by the different actors.

119The blame of a bad nomination

120 would fall upon the President singly and absolutely.

121The censure of rejecting a good one

122 would lie entirely at the door of the Senate;

123 aggravated by the consideration

124 of their having counteracted

125 the good intentions of the Executive.

126If an ill appointment should be made,

127 the Executive for nominating,

128 and the Senate for approving,

129 would participate, though in different degrees,

130 in the opprobrium and disgrace.

131The reverse of all this characterizes

132 the manner of appointment in this State.

133The council of appointment consists

134 of from three to five persons,

135 of whom the governor is always one.

136This small body, shut up in a private apartment,

137 impenetrable to the public eye,

138 proceed to the execution of the trust

139 committed to them.

140It is known that the governor claims

141 the right of nomination,

142 upon the strength of some ambiguous expressions

143 in the constitution;

144 but it is not known to what extent,

145 or in what manner he exercises it;

146 nor upon what occasions he is

147 contradicted or opposed.

148The censure of a bad appointment,

149 on account of the uncertainty of its author,

150 and for want of a determinate object,

151 has neither poignancy nor duration.

152And while an unbounded field for cabal

153 and intrigue lies open,

154 all idea of responsibility is lost.

155The most that the public can know,

156 is that the governor claims the right of nomination;

157 that TWO out of the inconsiderable number of FOUR men

158 can too often be managed without much difficulty;

159 that if some of the members of a particular council

160 should happen to be of an uncomplying character,

161 it is frequently not impossible

162 to get rid of their opposition

163 by regulating the times of meeting

164 in such a manner as to render

165 their attendance inconvenient;

166 and that from whatever cause it may proceed,

167 a great number of very improper appointments

168 are from time to time made.

169Whether a governor of this State

170 avails himself of the ascendant

171 he must necessarily have,

172 in this delicate and important part

173 of the administration,

174 to prefer to offices men

175 who are best qualified for them,

176 or whether he prostitutes that advantage

177 to the advancement of persons

178 whose chief merit is their implicit

179 devotion to his will,

180 and to the support of a despicable

181 and dangerous system

182 of personal influence,

183 are questions which, unfortunately

184 for the community,

185 can only be the subjects

186 of speculation and conjecture.

187Every mere council of appointment, however constituted,

188 will be a conclave,

189 in which cabal and intrigue

190 will have their full scope.

191Their number, without an unwarrantable increase of expense,

192 cannot be large enough to preclude

193 a facility of combination.

194And as each member will have his friends and connections

195 to provide for,

196 the desire of mutual gratification

197 will beget a scandalous bartering of votes

198 and bargaining for places.

199The private attachments of one man

200 might easily be satisfied;

201 but to satisfy the private attachments

202 of a dozen, or of twenty men,

203 would occasion a monopoly

204 of all the principal employments of the government

205 in a few families,

206 and would lead more directly

207 to an aristocracy or an oligarchy

208 than any measure that could be contrived.

209If, to avoid an accumulation of offices,

210 there was to be a frequent change

211 in the persons who were to compose the council,

212 this would involve the mischiefs

213 of a mutable administration in their full extent.

214Such a council would also be more liable

215 to executive influence than the Senate,

216 because they would be fewer in number,

217 and would act less immediately

218 under the public inspection.

219Such a council, in fine,

220 as a substitute for the plan of the convention,

221 would be productive of an increase of expense,

222 a multiplication of the evils

223 which spring from favoritism and intrigue

224 in the distribution of public honors,

225 a decrease of stability

226 in the administration of the government,

227 and a diminution of the security

228 against an undue influence of the Executive.

229And yet such a council has been warmly contended for

230 as an essential amendment in the proposed Constitution.

231I could not with propriety conclude my observations

232 on the subject of appointments

233 without taking notice of a scheme

234 for which there have appeared some,

235 though but few advocates;

236 I mean that of uniting the House of Representatives

237 in the power of making them.

238I shall, however, do little more than mention it,

239 as I cannot imagine that it is likely to gain

240 the countenance of any considerable part

241 of the community.

242A body so fluctuating and at the same time so numerous,

243 can never be deemed proper

244 for the exercise of that power.

245Its unfitness will appear manifest to all,

246 when it is recollected

247 that in half a century it may consist

248 of three or four hundred persons.

249All the advantages of the stability,

250 both of the Executive and of the Senate,

251 would be defeated by this union,

252 and infinite delays and embarrassments

253 would be occasioned.

254The example of most of the States

255 in their local constitutions

256 encourages us to reprobate the idea.

257The only remaining powers of the Executive

258 are comprehended in giving information to Congress

259 of the state of the Union;

260 in recommending to their consideration

261 such measures as he shall judge expedient;

262 in convening them, or either branch,

263 upon extraordinary occasions;

264 in adjourning them when they cannot themselves agree

265 upon the time of adjournment;

266 in receiving ambassadors and other public ministers;

267 in faithfully executing the laws;

268 and in commissioning all the officers

269 of the United States.

270Except some cavils about the power of convening

271 EITHER house of the legislature,

272 and that of receiving ambassadors,

273 no objection has been made

274 to this class of authorities;

275 nor could they possibly admit of any.

276It required, indeed, an insatiable avidity for censure

277 to invent exceptions to the parts

278 which have been excepted to.

279In regard to the power of convening

280 either house of the legislature,

281 I shall barely remark,

282 that in respect to the Senate at least,

283 we can readily discover a good reason for it.

284AS this body has a concurrent power with the Executive

285 in the article of treaties,

286 it might often be necessary to call it together

287 with a view to this object,

288 when it would be unnecessary and improper

289 to convene the House of Representatives.

290As to the reception of ambassadors,

291 what I have said in a former paper

292 will furnish a sufficient answer.

293We have now completed a survey

294 of the structure and powers

295 of the executive department,

296 which, I have endeavored to show,

297 combines, as far as republican principles

298 will admit,

299 all the requisites to energy.

300The remaining inquiry is:

301 Does it also combine the requisites to safety,

302 in a republican sense,

303 a due dependence on the people,

304 a due responsibility?

305The answer to this question has been anticipated

306 in the investigation of its other characteristics,

307 and is satisfactorily deducible

308 from these circumstances;

309 from the election of the President once in four years

310 by persons immediately chosen by the people

311 for that purpose;

312 and from his being at all times liable to impeachment,

313 trial, dismission from office,

314 incapacity to serve in any other,

315 and to forfeiture of life and estate

316 by subsequent prosecution

317 in the common course of law.

318But these precautions, great as they are,

319 are not the only ones

320 which the plan of the convention has provided

321 in favor of the public security.

322In the only instances

323 in which the abuse of the executive authority

324 was materially to be feared,

325 the Chief Magistrate of the United States would,

326 by that plan,

327 be subjected to the control

328 of a branch of the legislative body.

329What more could be desired

330 by an enlightened and reasonable people?

331PUBLIUS.