" 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 de-
" partments. 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 judi-
cious choice of men for filling the offices of the Union
and it will not need proof, that on this point must es
sentially depend the character of its administration.
It will be agreed on all hands, that the power of ap-
pointment, 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, men-
tion is made in the subsequent reasonings, of an Assem-
bly or body of men, what is said must be understood
to relate to a select body or Assembly, of the descrip-
tion 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
The Fasderalist. 527
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
Due man of discernment is better fitted to analyze and
estimate the peculiar qualities adapted to particular of-
fices, 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 inter-
ested 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 /e^i;er personal attachments to grat-
ify, 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 un-
derstanding, cannot be distracted and warped by that di-
versity 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 man-
kind 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
528 The Foederalist.
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 can-
didate will be too often out of sight. In the first, the
qualifications best adapted to uniting the suflrages 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 ne-
gotiations.
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 Convenjtion. They contend that the President ought
solely to have been authorized to make the appointments
under the Foederal Government. But it is easy to show,
that every advantage to be expected from such an ar-
rangement would, in substance, be derived from the
power of no7ninatioti, 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 nomina-
tion, 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 dis-
charge of his duty in one case, would exist in the other.
The Fuderalist. 529
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 degi-ee. It is also not very prob-
able 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 ; be-
cause 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 in-
dividual 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 re-
fused, where there were not special and strong reasons for
the refusal.
To what purpose then require the cooperation of the
Senate ? I answer, that the necessity of their concur-
rence 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 preventing 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 oflices, would be governed
much more by his private inclinations and interests, than
when he was bound to submit the propriety of his choice
VOL. I. 84
530 Tlie Fcederalist.
to the discussion and determination of a different and
independent body, and that body an entire branch of
the Legislature. The possibility of rejection would be
a strong motive to care in proposing. The danger to
bis own reputation, and, in the case of an elective Mag-
istrate, 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, candi-
dates 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 Presi-
dent, by the influence of the power of nomination, may
secure the complaisance of the Senate to his views.
The supposition of universal venality in human nature,
is little less an error in political reasoning, than the sup-
position of universal rectitude. The institution of dele-
gated power implies, that there is a portion of virtue and
honor among mankind, which may be a reasonable foun-
dation of confidence; and experience justifies the theory.
It has been found to exist in the most con'upt periods of
the most corrupt Governments. The venality 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 indepen-
dent and public-spirited men, who have an influential
weight in the councils of the Nation. Hence it is, (the
The Feeder alist. 531
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 Exec-
utive might occasionally influence some individuals in
the Senate, yet the supposition, that he could in gen-
eral purchase the integrity of the whole body, would be
forced and improbable. A man disposed to view hu-
man 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 cooperation, in the business of ap-
pointments, will be a considerable and salutary restraint
upon the conduct of that Magistrate. Nor is the integ-
rity 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, dur-
"ing the time /or 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.
532 The Fcederalist.
\_From the New York Packet, Friday, April 4, 1788.]
THE FCEDERALIST. No. LXXYI.
To THE People of the State of New Yokk :
IT has been mentioned as one of the advantages to be
expected from the cooperation 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 ap-
point. 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 at-
tempting 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 probabil-
ity be less subject to inconstancy than any other mem-
ber of the Government.
To this union of the Senate with the President, in the
Article of appointments, it has in some cases been sug-
gested, that it would serve to give the President an un-
due influence over the Senate ; and in others that it
would have an opposite tendency ; a strong proof that
neither suggestion is true.
The Feeder alist. 533
To state the first in its proper form, is to refute it. It
amounts to this, — the President would have an im-
proper 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 sub-
ject 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 an-
swer. 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 im-
ply 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 com-
pliances of the Senate. The power which can origi-
nate 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 advan-
tage to be looked for from the uncontrolled agency of
that Magistrate. The right of nomination would pro-
duce all the good of that of appointment, and would in
a great measure avoid its evils.
534 The Fa^deralist.
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 at-
tending 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 ^^ould fall upon the President
singly and absolutely. The censure of rejecting a good
one would lie entirely at the door of the Senate ; ag-
gravated by the consideration of their having counter-
acted the good intentions of the Executive. If an ill
appointment should be made, the Executive for nomi-
nating, and the Senate for approving, would participate,
though in different degrees, in the opprobrium and dis-
grace.
The reverse of all this characterizes the manner of
appointment in this State. The Council of Appoint-
ment 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 uncer-
tainty of its author, and for want of a determinate ob-
ject, has neither poignancy nor duration. And while
an unbounded field for cabal and intrigue lies open, all
The Feeder alist. 535
idea of responsibility is lost. The most that the public
can know, is that the Governor claims the right of nom-
ination ; that tioo out of the inconsiderable number of
four men can too often be managed without much dif-
ficulty; that if some of the members of a particular
Council should happen to be of an uncomplying char-
acter, 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 num-
ber 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 advance-
ment of persons whose chief merit is their implicit de-
votion to his will, and to the support of a despicable
and dangerous system of personal influence, are ques-
tions which, unfortunately for the community, can only
be the subjects of speculation and conjecture.
Every mere Council of Appointment, however con-
stituted, 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 *q. mo-
nopoly of all the principal employments of the Govern-
ment, 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
536 The Fcederalist.
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 imme-
diately 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 multi-
plication 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 in-
fluence 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 can-
not 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 rec-
ollected 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 ^nbarrassments would be occasioned. The ex-
ample 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
Tlie Fcederalist. 537
state of the Union ; in recommending to their consider-
ation such measures as he shall judge expedient; in
convening them, or either branch, upon extraordinary
occasions ; in adjourning them when they cannot them-
selves agree upon the time of adjournment; in receiv-
ing Ambassadors and other public Ministers ; in faith-
fully 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 ob-
ject, when it would be unnecessary and improper to
convene the House of Representatives. As to the re-
ception 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 prin-
ciples will admit, all the requisites to energy. The
remaining inquiry is, — Does it also combine the req-
uisites to safety, in the republican sense, — a due de-
pendence on the People — a due responsibility ? The
answer to this question has been anticipated in the in-
vestigation of its other characteristics, and is satisfactori-
ly deducible from these circumstances ; from the election
of the President once in four years by persons immedi-
ately chosen by the People for that purpose ; and from
538 The Foederalist.
his being, at all times, liable to impeachment, trial, dis-
mission 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 Leg-
islative body. What more could be desired by an en-
lightened and reasonable people ?
PUBLIUS.
[From M'Lean's Edition, New York, M.DCC.LXXXVIII.]
[THE FCEDERALIST.] No. LXXYIII.
[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 Foederal Judicature have
been clearly pointed out. It is the less necessary to re-
capitulate the considerations there urged, as the propri-
ety 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 au-
The Fcederalist. 539
thority 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.