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.
THE FEDERALIST.
No. LXXVII.
The Appointing Power Continued and Other Powers of the Executive
Considered
From the New York Packet.
Friday, April 4, 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 of that of appointment, and would
in a great measure avoid its evils. 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.
THE FEDERALIST.
No. LXXVIII.
The Judiciary Department
From McLEAN’S Edition, New York.
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.
Whoever attentively considers the different departments of power must
perceive, that, in a government in which they are separated from each
other, the judiciary, from the nature of its functions, will always be
the least dangerous to the political rights of the Constitution;
because it will be least in a capacity to annoy or injure them. The
Executive not only dispenses the honors, but holds the sword of the
community. The legislature not only commands the purse, but prescribes
the rules by which the duties and rights of every citizen are to be
regulated. The judiciary, on the contrary, has no influence over either
the sword or the purse; no direction either of the strength or of the
wealth of the society; and can take no active resolution whatever. It
may truly be said to have neither FORCE nor WILL, but merely judgment;
and must ultimately depend upon the aid of the executive arm even for
the efficacy of its judgments.
This simple view of the matter suggests several important consequences.
It proves incontestably, that the judiciary is beyond comparison the
weakest of the three departments of power;[1] that it can never attack
with success either of the other two; and that all possible care is
requisite to enable it to defend itself against their attacks. It
equally proves, that though individual oppression may now and then
proceed from the courts of justice, the general liberty of the people
can never be endangered from that quarter; I mean so long as the
judiciary remains truly distinct from both the legislature and the
Executive. For I agree, that “there is no liberty, if the power of
judging be not separated from the legislative and executive powers.”[2]
And it proves, in the last place, that as liberty can have nothing to
fear from the judiciary alone, but would have every thing to fear from
its union with either of the other departments; that as all the effects
of such a union must ensue from a dependence of the former on the
latter, notwithstanding a nominal and apparent separation; that as,
from the natural feebleness of the judiciary, it is in continual
jeopardy of being overpowered, awed, or influenced by its co-ordinate
branches; and that as nothing can contribute so much to its firmness
and independence as permanency in office, this quality may therefore be
justly regarded as an indispensable ingredient in its constitution,
and, in a great measure, as the citadel of the public justice and the
public security.
The complete independence of the courts of justice is peculiarly
essential in a limited Constitution. By a limited Constitution, I
understand one which contains certain specified exceptions to the
legislative authority; such, for instance, as that it shall pass no
bills of attainder, no ex-post-facto laws, and the like. Limitations of
this kind can be preserved in practice no other way than through the
medium of courts of justice, whose duty it must be to declare all acts
contrary to the manifest tenor of the Constitution void. Without this,
all the reservations of particular rights or privileges would amount to
nothing.
Some perplexity respecting the rights of the courts to pronounce
legislative acts void, because contrary to the Constitution, has arisen
from an imagination that the doctrine would imply a superiority of the
judiciary to the legislative power. It is urged that the authority
which can declare the acts of another void, must necessarily be
superior to the one whose acts may be declared void. As this doctrine
is of great importance in all the American constitutions, a brief
discussion of the ground on which it rests cannot be unacceptable.
There is no position which depends on clearer principles, than that
every act of a delegated authority, contrary to the tenor of the
commission under which it is exercised, is void. No legislative act,
therefore, contrary to the Constitution, can be valid. To deny this,
would be to affirm, that the deputy is greater than his principal; that
the servant is above his master; that the representatives of the people
are superior to the people themselves; that men acting by virtue of
powers, may do not only what their powers do not authorize, but what
they forbid.
If it be said that the legislative body are themselves the
constitutional judges of their own powers, and that the construction
they put upon them is conclusive upon the other departments, it may be
answered, that this cannot be the natural presumption, where it is not
to be collected from any particular provisions in the Constitution. It
is not otherwise to be supposed, that the Constitution could intend to
enable the representatives of the people to substitute their WILL to
that of their constituents. It is far more rational to suppose, that
the courts were designed to be an intermediate body between the people
and the legislature, in order, among other things, to keep the latter
within the limits assigned to their authority. The interpretation of
the laws is the proper and peculiar province of the courts. A
constitution is, in fact, and must be regarded by the judges, as a
fundamental law. It therefore belongs to them to ascertain its meaning,
as well as the meaning of any particular act proceeding from the
legislative body. If there should happen to be an irreconcilable
variance between the two, that which has the superior obligation and
validity ought, of course, to be preferred; or, in other words, the
Constitution ought to be preferred to the statute, the intention of the
people to the intention of their agents.
Nor does this conclusion by any means suppose a superiority of the
judicial to the legislative power. It only supposes that the power of
the people is superior to both; and that where the will of the
legislature, declared in its statutes, stands in opposition to that of
the people, declared in the Constitution, the judges ought to be
governed by the latter rather than the former. They ought to regulate
their decisions by the fundamental laws, rather than by those which are
not fundamental.
This exercise of judicial discretion, in determining between two
contradictory laws, is exemplified in a familiar instance. It not
uncommonly happens, that there are two statutes existing at one time,
clashing in whole or in part with each other, and neither of them
containing any repealing clause or expression. In such a case, it is
the province of the courts to liquidate and fix their meaning and
operation. So far as they can, by any fair construction, be reconciled
to each other, reason and law conspire to dictate that this should be
done; where this is impracticable, it becomes a matter of necessity to
give effect to one, in exclusion of the other. The rule which has
obtained in the courts for determining their relative validity is, that
the last in order of time shall be preferred to the first. But this is
a mere rule of construction, not derived from any positive law, but
from the nature and reason of the thing. It is a rule not enjoined upon
the courts by legislative provision, but adopted by themselves, as
consonant to truth and propriety, for the direction of their conduct as
interpreters of the law. They thought it reasonable, that between the
interfering acts of an EQUAL authority, that which was the last
indication of its will should have the preference.
But in regard to the interfering acts of a superior and subordinate
authority, of an original and derivative power, the nature and reason
of the thing indicate the converse of that rule as proper to be
followed. They teach us that the prior act of a superior ought to be
preferred to the subsequent act of an inferior and subordinate
authority; and that accordingly, whenever a particular statute
contravenes the Constitution, it will be the duty of the judicial
tribunals to adhere to the latter and disregard the former.