THE President is to have power, "by and with the advice and consent
of the Senate, to make treaties, provided two thirds of the senators
present concur."
Though this provision has been assailed, on different grounds, with
no small degree of vehemence, I scruple not to declare my firm
persuasion, that it is one of the best digested and most
unexceptionable parts of the plan. One ground of objection is the
trite topic of the intermixture of powers: some contending that the
President ought alone to possess the power of making treaties;
others, that it ought to have been exclusively deposited in the
Senate. Another source of objection is derived from the small number
of persons by whom a treaty may be made. Of those who espouse this
objection, a part are of opinion that the House of Representatives
ought to have been associated in the business, while another part
seem to think that nothing more was necessary than to have
substituted two thirds of all the members of the Senate, to two
thirds of the members present. As I flatter myself the observations
made in a preceding number upon this part of the plan must have
sufficed to place it, to a discerning eye, in a very favorable
light, I shall here content myself with offering only some
supplementary remarks, principally with a view to the objections
which have been just stated.
With regard to the intermixture of powers, I shall rely upon the
explanations already given in other places, of the true sense of the
rule upon which that objection is founded; and shall take it for
granted, as an inference from them, that the union of the Executive
with the Senate, in the article of treaties, is no infringement of
that rule. I venture to add, that the particular nature of the power
of making treaties indicates a peculiar propriety in that union.
Though several writers on the subject of government place that power
in the class of executive authorities, yet this is evidently an
arbitrary disposition; for if we attend carefully to its operation,
it will be found to partake more of the legislative than of the
executive character, though it does not seem strictly to fall within
the definition of either of them. The essence of the legislative
authority is to enact laws, or, in other words, to prescribe rules
for the regulation of the society; while the execution of the laws,
and the employment of the common strength, either for this purpose
or for the common defence, seem to comprise all the functions of the
executive magistrate. The power of making treaties is, plainly,
neither the one nor the other. It relates neither to the execution
of the subsisting laws, not to the enaction of new ones; and still
less to an exertion of the common strength. Its objects are
CONTRACTS with foreign nations, which have the force of law, but
derive it from the obligations of good faith. They are not rules
prescribed by the sovereign to the subject, but agreements between
sovereign and sovereign. The power in question seems therefore to
form a distinct department, and to belong, properly, neither to the
legislative nor to the executive. The qualities elsewhere detailed
as indispensable in the management of foreign negotiations, point
out the Executive as the most fit agent in those transactions; while
the vast importance of the trust, and the operation of treaties as
laws, plead strongly for the participation of the whole or a portion
of the legislative body in the office of making them.
However proper or safe it may be in governments where the executive
magistrate is an hereditary monarch, to commit to him the entire
power of making treaties, it would be utterly unsafe and improper to
intrust that power to an elective magistrate of four years'
duration. It has been remarked, upon another occasion, and the
remark is unquestionably just, that an hereditary monarch, though
often the oppressor of his people, has personally too much stake in
the government to be in any material danger of being corrupted by
foreign powers. But a man raised from the station of a private
citizen to the rank of chief magistrate, possessed of a moderate or
slender fortune, and looking forward to a period not very remote
when he may probably be obliged to return to the station from which
he was taken, might sometimes be under temptations to sacrifice his
duty to his interest, which it would require superlative virtue to
withstand.
An avaricious man might be tempted to betray the interests of the
state to the acquisition of wealth. An ambitious man might make his
own aggrandizement, by the aid of a foreign power, the price of his
treachery to his constituents. The history of human conduct does not
warrant that exalted opinion of human virtue which would make it
wise in a nation to commit interests of so delicate and momentous a
kind, as those which concern its intercourse with the rest of the
world, to the sole disposal of a magistrate created and
circumstanced as would be a President of the United States.
To have intrusted the power of making treaties to the Senate alone,
would have been to relinquish the benefits of the constitutional
agency of the President in the conduct of foreign negotiations. It
is true that the Senate would, in that case, have the option of
employing him in this capacity, but they would also have the option
of letting it alone, and pique or cabal might induce the latter
rather than the former. Besides this, the ministerial servant of the
Senate could not be expected to enjoy the confidence and respect of
foreign powers in the same degree with the constitutional
representatives of the nation, and, of course, would not be able to
act with an equal degree of weight or efficacy. While the Union
would, from this cause, lose a considerable advantage in the
management of its external concerns, the people would lose the
additional security which would result from the cooperation of the
Executive. Though it would be imprudent to confide in him solely so
important a trust, yet it cannot be doubted that his participation
would materially add to the safety of the society. It must indeed be
clear to a demonstration that the joint possession of the power in
question, by the President and Senate, would afford a greater
prospect of security, than the separate possession of it by either
of them. And whoever has maturely weighed the circumstances which
must concur in the appointment of a President, will be satisfied
that the office will always bid fair to be filled by men of such
characters as to render their concurrence in the formation of
treaties peculiarly desirable, as well on the score of wisdom, as on
that of integrity.
The remarks made in a former number, which have been alluded to in
another part of this paper, will apply with conclusive force against
the admission of the House of Representatives to share in the
formation of treaties. The fluctuating and, taking its future
increase into the account, the multitudinous composition of that
body, forbid us to expect in it those qualities which are essential
to the proper execution of such a trust. Accurate and comprehensive
knowledge of foreign politics; a steady and systematic adherence to
the same views; a nice and uniform sensibility to national
character; decision, secrecy, and despatch, are incompatible with
the genius of a body so variable and so numerous. The very
complication of the business, by introducing in a necessity of the
concurrence of so many different bodies, would of itself afford a
solid objection. The greater frequency of the calls upon the House
of Representatives, and the greater length of time which it would
often be necessary to keep them together when convened, to obtain
their sanction in the progressive stages of a treaty, would be a
source of so great inconvenience and expense as alone ought to
condemn the project.
The only objection which remains to be canvassed, is that which
would substitute the proportion of two thirds of all the members
composing the senatorial body, to that of two thirds of the members
present. It has been shown, under the second head of our inquiries,
that all provisions which require more than the majority of any body
to its resolutions, have a direct tendency to embarrass the
operations of the government, and an indirect one to subject the
sense of the majority to that of the minority. This consideration
seems sufficient to determine our opinion, that the convention have
gone as far in the endeavor to secure the advantage of numbers in
the formation of treaties as could have been reconciled either with
the activity of the public councils or with a reasonable regard to
the major sense of the community. If two thirds of the whole number
of members had been required, it would, in many cases, from the
non-attendance of a part, amount in practice to a necessity of
unanimity. And the history of every political establishment in which
this principle has prevailed, is a history of impotence, perplexity,
and disorder. Proofs of this position might be adduced from the
examples of the Roman Tribuneship, the Polish Diet, and the
States-General of the Netherlands, did not an example at home render
foreign precedents, unnecessary.
To require a fixed proportion of the whole body would not, in all
probability, contribute to the advantages of a numerous agency,
better than merely to require a proportion of the attending members.
The former, by making a determinate number at all times requisite to
a resolution, diminishes the motives to punctual attendance. The
latter, by making the capacity of the body to depend on a proportion
which may be varied by the absence or presence of a single member,
has the contrary effect. And as, by promoting punctuality, it tends
to keep the body complete, that is great likelihood that its
resolutions would generally be dictated by as great a number in this
case as in the other; while there would be much fewer occasions of
delay.
It ought not to be forgotten that, under the existing Confederation,
two members may, and usually do, represent a State; whence it
happens that Congress, who now are solely invested with all the
powers of the Union, rarely consist of a greater number of persons
than would compose the intended Senate. If we add to this, that as
the members vote by States, and that where there is only a single
member present from a State, his vote is lost, it will justify a
supposition that the active voices in the Senate, where the members
are to vote individually, would rarely fall short in number of the
active voices in the existing Congress. When, in addition to these
considerations, we take into view the cooperation of the President,
we shall not hesitate to infer that the people of America would have
greater security against an improper use of the power of making
treaties, under the new Constitution, than they now enjoy under the
Confederation. And when we proceed still one step further, and look
forward to the probable augmentation of the Senate, by the erection
of new States, we shall not only perceive ample ground of confidence
in the sufficiency of the members to whose agency that power will be
intrusted, but we shall probably be led to conclude that a body more
numerous than the Senate would be likely to become, would be very
little fit for the proper discharge of the trust.
Signed "PUBLIUS"
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