Letters from The Federal Farmer to The Republican
(Richard Henry Lee ?)

XIV.

January 17, 1788.

Dear sir,

To continue the subject of appointments:—Officers, in the fifth
place, may be appointed by the heads of departments or courts of law. Art. 2.
sect. 2. respecting appointments, goes on—“But congress may by law vest
the appointment of such inferior officers as they think proper in the president
alone, in the courts of law, or in the heads of departments.” The probability
is, as the constitution now stands, that the senate, a branch of the
legislature, will be tenacious of the power of appointment, and much too
sparingly part with a share of it to the courts of law, and heads of
departments. Here again the impropriety appears of the senate’s having,
generally, a share in the appointment of officers. We may fairly presume, that
the judges, and principal officers in the departments, will be able well
informed men in their respective branches of business; that they will, from
experience, be best informed as to proper persons to fill inferior offices in
them; that they will feel themselves responsible for the execution of their
several branches of business, and for the conduct of the officers they may
appoint therein.—From these, and other considerations, I think we may
infer, that impartial and judicious appointments of subordinate officers will,
generally, be made by the courts of law, and the heads of departments. This
power of distributing appointments, as circumstances may require, into several
hands, in a well formed disinterested legislature, might be of essential
service, not only in promoting beneficial appointments, but, also, in
preserving the balance in government: a feeble executive may be strengthened
and supported by placing in its hands more numerous appointments; an executive
too influential may be reduced within proper bounds, by placing many of the
inferior appointments in the courts of law, and heads of departments; nor is
there much danger that the executive will be wantonly weakened or strengthened
by the legislature, by thus shifting the appointments of inferior officers,
since all must be done by legislative acts, which cannot be passed without the
consent of the executive, or the consent of two thirds of both branches—a good legislature will use this power to preserve the balance and perpetuate
the government. Here again we are brought to our ultimatum:—is the
legislature so constructed as to deserve our confidence?

6. Officers may be appointed by the state governments. By art. 1. sect.
8. the respective states are authorised exclusively to appoint the
militia-officers. This not only lodges the appointments in proper places, but
it also tends to distribute and lodge in different executive hands the powers
of appointing to offices, so dangerous when collected into the hands of one or
a few men.

It is a good general rule, that the legislative, executive, and judicial
powers, ought to be kept distinct; but this, like other general rules, has its
exceptions; and without these exceptions we cannot form a good government, and
properly balance its parts: and we can determine only from reason, experience,
and a critical inspection of the parts of the government, how far it is proper
to intermix those powers. Appointments, I believe, in all mixed governments,
have been assigned to different hands—some are made by the executive,
some by the legislature, some by the judges, and some by the people. It has
been thought adviseable by the wisest nations, that the legislature should so
far exercise executive and judicial powers as to appoint some officers, judge
of the elections of its members, and impeach and try officers for misconduct—that the executive should have a partial share in legislation—that judges should appoint some subordinate officers, and regulate so far as to
establish rules for their own proceedings. Where the members of the government,
as the house, the senate, the executive, and judiciary, are strong and
complete, each in itself, the balance is naturally produced, each party may
take the powers congenial to it, and we have less need to be anxious about
checks, and the subdivision of powers.

If after making the deductions, already alluded to, from the general
power to appoint federal officers the residuum shall be thought to be too large
and unsafe, and to place an undue influence in the hands of the president and
council, a further deduction may be made, with many advantages, and, perhaps,
with but a few inconveniencies; and that is, by giving the appointment of a few
great officers to the legislature—as of the commissioners of the
treasury—of the comptroller, treasurer, master coiner, and some of the
principal officers in the money department—of the sheriffs or marshalls
of the United States—of states attornies, secretary of the home
department, and secretary at war, perhaps, of the judges of the supreme court—of major-generals and admirals. The appointments of these officers, who
may be at the heads of the great departments of business, in carrying into
execution the national system, involve in them a variety of considerations;
they will not often occur and the power to make them ought to remain in safe
hands. Officers of the above description are appointed by the legislatures in
some of the states, and in some not. We may, I believe, presume that the
federal legislature will possess sufficient knowledge and discernment to make
judicious appointments: however, as these appointments by the legislature tend
to increase a mixture of power, to lessen the advantages of impeachments and
responsibility, I would by no means contend for them any further than it may be
necessary for reducing the power of the executive within the bounds of safety.
To determine, with propriety, how extensive power the executive ought to
possess relative to appointments, we must also examine the forms of it, and its
other powers; and these forms and other powers I shall now proceed briefly to
examine.

By art. 2. sect. 1. the executive power shall be vested in a president
elected for four years, by electors to be appointed from time to time, in such
manner as the state legislatures shall direct—the electors to be equal
in numbers to the federal senators and representatives: but congress may
determine the time of chusing senators [i.e. electors], and the day on which
they shall give their votes; and if no president be chosen by the electors, by
a majority of votes, the states, as states in congress, shall elect one of the
five highest on the list for president. It is to be observed, that in chusing
the president, the principle of electing by a majority of votes is adopted; in
chusing the vice president, that of electing by a plurality. Viewing the
principles and checks established in the election of the president, and
especially considering the several states may guard the appointment of the
electors as they shall judge best, I confess there appears to be a judicious
combination of principles and precautions. Were the electors more numerous than
they will be, in case the representation be not increased, I think, the system
would be improved; not that I consider the democratic character so important in
the choice of the electors as in the choice of representatives: be the electors
more or less democratic, the president will be one of the very few of the most
elevated characters. But there is danger, that a majority of a small number of
electors may be corrupted and influenced, after appointed electors, and before
they give their votes, especially if a considerable space of time elapse
between the appointment and voting. I have already considered the advisory
council in the executive branch: there are two things further in the
organization of the executive, to which I would particularly draw your
attention; the first, which, is a single executive. I confess, I approve; the
second, by which any person from period to period may be re-elected president,
I think very exceptionable.

Each state in the union has uniformly shewn its preference for a single
executive, and generally directed the first executive magistrate to act in
certain cases by the advice of an executive council. Reason, and the experience
of enlightened nations, seem justly to assign the business of making laws to
numerous assemblies; and the execution of them, principally, to the direction
and care of one man. Independent of practice a single man seems to be
peculiarly well circumstanced to superintend the execution of laws with
discernment and decision, with promptitude and un[i]formity: the people usually
point out a first man—he is to be seen in civilized as well as
uncivilized nations—in republics as well as in other governments. In
every large collection of people there must be a visible point serving as a
common centre in the government, towards which to draw their eyes and
attachments. The constitution must fix a man, or a congress of men, superior in
the opinion of the people, to the most popular men in the different parts of
the community, else the people will be apt to divide and follow their
respective leaders. Aspiring men, armies and navies, have not often been kept
in tolerable order by the decrees of a senate or an executive council. The
advocates for lodging the executive power in the hands of a number of equals,
as an executive council, say, that much wisdom may be collected in such a
council, and that it will be safe; but they agree, that it cannot be so prompt
and responsible as a single man—they admit that such a council will
generally consist of the aristocracy, and not stand so indifferent between it
and the people as a first magistrate. But the principal objection made to a
single man is, that when possessed of power he will be constantly struggling
for more, disturbing the government, and encroaching on the rights of others.
It must be admitted, that men, from the monarch down to the porter, are
constantly aiming at power and importance and this propensity must be as
constantly guarded against in the forms of the government. Adequate powers must
be delegated to those who govern, and our security must be in limiting,
defining, and guarding the exercise of them, so that those given shall not be
abused, or made use of for openly or secretly seizing more. Why do we believe
this abuse of power peculiar to a first magistrate? Is it because in the wars
and contests of men, one man has often established his power over the rest? Or
are men naturally fond of accumulating powers in the hands of one man? I do not
see any similitude between the cases of those tyrants, who have sprung up in
the midst of wars and tumults, and the cases of limited executives in
established governments; nor shall we, on a careful examination, discover much
likeness between the executives in Sweden, Denmark, Holland, &c. which
have, from time to time, increased their powers, and become more absolute, and
the executives, whose powers are well ascertained and defined, and which
remain, by the constitution, only for a short and limited period in the hands
of any one man or family. A single man, or family, can long and effectually
direct its exertions to one point. There may be many favourable opportunities
in the course of a man’s life to seize on additional powers, and many more
where powers are hereditary; and there are many circumstances favourable to
usurpations, where the powers of the man or family are undefined, and such as
often may be unduly extended before the people discover it. If we examine
history attentively, we shall find that such exertions, such opportunities, and
such circumstances as these have attended all the executives which have usurped
upon the rights of the people, and which appear originally to have been, in
some degree, limited. Admitting that moderate and even well defined powers,
long in the hands of the same man or family, will, probably, be unreasonably
increased, it will not follow that even extensive powers placed in the hands of
a man only for a few years will be abused. The Roman consuls and Carthagenian
suffetes possessed extensive powers while in office; but being annually
appointed, they but seldom, if ever, abused them. The Roman dictators often
possessed absolute power while in office; but usually being elected for short
periods of time, no one of them for ages usurped upon the rights of the people.
The kings of France, Spain, Sweden, Denmark, &c. have become absolute
merely from the encroachments and abuse of power made by the nobles. As to
kings, and limited monarchs, generally, history furnishes many more instances
in which their powers have been abridged or annihilated by the nobles or
people, or both, than in which they have been increased or made absolute; and
in almost all the latter cases, we find the people were inattentive and fickle,
and evidently were not born to be free. I am the more particular respecting
this subject, because I have heard many mistaken observations relative to it.
Men of property, and even men who hold powers for themselves and posterity,
have too much to lose, wantonly to hazard a shock of the political system; the
game must be large, and the chance of winning great, to induce them to risque
what they have, for the uncertain prospect of gaining more. Our executive may
be altogether elective, and possess no power, but as the substitute of the
people, and that well limited, and only for a limited time. The great object
is, in a republican government, to guard effectually against perpetuating any
portion of power, great or small, in the same man or family; this perpetuation
of power is totally uncongenial to the true spirit of republican governments:
on the one hand the first executive magistrate ought to remain in office so
long as to avoid instability in the execution of the laws; on the other, not so
long as to enable him to take any measures to establish himself. The
convention, it seems, first agreed that the president should be chosen for
seven years, and never after to be eligible. Whether seven years is a period
too long or not, is rather matter of opinion; but clear it is, that this mode
is infinitely preferable to the one finally adopted. When a man shall get the
chair, who may be re-elected, from time to time, for life, his greatest object
will be to keep it; to gain friends and votes, at any rate; to associate some
favourite son with himself, to take the office after him: whenever he shall
have any prospect of continuing the office in himself and family, he will spare
no artifice, no address, and no exertions, to increase the powers and
importance of it; the servile supporters of his wishes will be placed in all
offices, and tools constantly employed to aid his views and sound his praise. A
man so situated will have no permanent interest in the government to lose, by
contests and convulsions in the state, but always much to gain, and frequently
the seducing and flattering hope of succeeding. If we reason at all on the
subject, we must irresistably conclude, that this will be the case with nine
tenths of the presidents; we may have, for the first president, and, perhaps,
one in a century or two afterwards (if the government should withstand the
attacks of others) a great and good man, governed by superior motives; but
these are not events to be calculated upon in the present state of human
nature.

A man chosen to this important office for a limited period, and always
afterwards rendered, by the constitution, ineligible, will be governed by very
different considerations: he can have no rational hopes or expectations of
retaining his office after the expiration of a known limited time, or of
continuing the office in his family, as by the constitution there must be a
constant transfer of it from one man to another, and consequently from one
family to another. No man will wish to be a mere cypher at the head of the
government: the great object of each president then will be, to render his
government a glorious period in the annals of his country. When a man
constitutionally retires from office, he retires without pain; he is sensible
he retires because the laws direct it, and not from the success of his rivals,
nor with that public disapprobation which being left out, when eligible,
implies. It is said, that a man knowing that at a given period he must quit his
office, will unjustly attempt to take from the public, and lay in store the
means of support and splendour in his retirement; there can, I think, be but
very little in this observation. The same constitution that makes a man
eligible for a given period only, ought to make no man eligible till he arrive
to the age of forty or forty-five years: if he be a man of fortune, he will
retire with dignity to his estate; if not, he may, like the Roman consuls, and
other eminent characters in republics, find an honorable support and employment
in some respectable office. A man who must, at all events, thus leave his
office, will have but few or no temptations to fill its dependant offices with
his tools, or any particular set of men; whereas the man constantly looking
forward to his future elections, and, perhaps, to the aggrandizement of his
family, will have every inducement before him to fill all places with his own
props and dependants. As to public monies, the president need handle none of
them, and he may always rigidly be made [to] account for every shilling he
shall receive.

On the whole, it would be, in my opinion, almost as well to create a
limited monarchy at once, and give some family permanent power and interest in
the community, and let it have something valuable to itself to lose in
convulsions in the state, and in attempts of usurpation, as to make a first
magistrate eligible for life, and to create hopes and expectations in him and
his family, of obtaining what they have not. In the latter case, we actually
tempt them to disturb the state, to foment struggles and contests, by laying
before them the flattering prospect of gaining much in them without risking any
thing.

The constitution provides only that the president shall hold his office
during the term of four years; that, at most, only implies, that one shall be
chosen every fourth year; it also provides, that in case of the removal, death,
resignation, or inability, both of the president and vice-president, congress
may declare what officer shall act as president; and that such officers shall
act accordingly, until the disability be removed, or a president shall be
elected
: it also provides that congress may determine the time of chusing
electors, and the day on which they shall give their votes. Considering these
clauses together, I submit this question—whether in case of a vacancy in
the office of president, by the removal, death, resignation, or inability of
the president and vice-president, and congress should declare, that a certain
officer, as secretary for foreign affairs, for instance, shall act as
president, and suffer such officer to continue several years, or even for his
life, to act as president, by omitting to appoint the time for chusing electors
of another president, it would be any breach of the constitution? This appears
to me to be an intended provision for supplying the office of president, not
only for any remaining portion of the four years, but in cases of emergency,
until another president shall be elected; and that at a period beyond the
expiration of the four years: we do not know that it is impossible; we do not
know that it is improbable, in case a popular officer should thus be declared
the acting president, but that he might continue for life, and without any
violent act, but merely by neglects and delays on the part of congress.

I shall conclude my observations on the organization of the legislature
and executive, with making some remarks, rather as a matter of amusement, on
the branch, or partial negative, in the legislation:—The third branch in
the legislature may answer three valuable purposes, to impede in their passage
hasty and intemperate laws, occasionally to assist the senate or people, and to
prevent the legislature from encroaching upon the executive or judiciary. In
Great Britain the king has a complete negative upon all laws, but he very
seldom exercises it. This may be well lodged in him, who possesses strength to
support it, and whose family has independent and hereditary interests and
powers, rights and prerogatives, in the government, to defend: but in a country
where the first executive officer is elective, and has no rights, but in common
with the people, a partial negative in legislation, as in Massachusetts and
New-York, is, in my opinion, clearly best: in the former state, as before
observed, it is lodged in the governor alone; in the latter, in the governor,
chancellor, and judges of the supreme court—the new constitution lodges
it in the president. This is simply a branch of legislative power, and has in
itself no relation to executive or judicial powers. The question is, in what
hands ought it to be lodged, to answer the three purposes mentioned the most
advantageously? The prevailing opinion seems to be in favour of vesting it in
the hands of the first executive magistrate. I will not say this opinion is ill
founded. The negative, in one case, is intended to prevent hasty laws, not
supported and revised by two-thirds of each of the two branches; in the second,
it is to aid the weaker branch; and in the third, to defend the executive and
judiciary. To answer these ends, there ought, therefore, to be collected in the
hands which hold this negative, firmness, wisdom, and strength; the very object
of the negative is occasional opposition to the two branches. By lodging it in
the executive magistrate, we give him a share in making the laws, which he must
execute; by associating the judges with him, as in New-York, we give them a
share in making the laws, upon which they must decide as judicial magistrates;
this may be a reason for excluding the judges: however, the negative in
New-York is certainly well calculated to answer its great purposes: the
governor and judges united must possess more firmness and strength, more wisdom
and information, than either alone, and also more of the confidence of the
people; and as to the balance among the departments, why should the executive
alone hold the scales, and the judicial be left defenceless? I think the
negative in New-York is found best in practice; we see it there frequently and
wisely put upon the measures of the two branches; whereas in Massachusetts it
is hardly ever exercised, and the governor, I believe, has often permitted laws
to pass to which he had substantial objections, but did not make them; he,
however, it is to be observed, is annually elected.