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fp64.txt
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fp64.txt
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IT IS a just and not a new observation, that enemies to particular persons,
and opponents to particular measures, seldom confine their censures to
such things only in either as are worthy of blame. Unless on this principle,
it is difficult to explain the motives of their conduct, who condemn the
proposed Constitution in the aggregate, and treat with severity some of
the most unexceptionable articles in it. The second section gives power to the President, "BY AND WITH THE ADVICE
AND CONSENT OF THE SENATE, TO MAKE TREATIES, PROVIDED TWO THIRDS OF THE
SENATORS PRESENT CONCUR." The power of making treaties is an important one, especially as it relates
to war, peace, and commerce; and it should not be delegated but in such
a mode, and with such precautions, as will afford the highest security
that it will be exercised by men the best qualified for the purpose, and
in the manner most conducive to the public good. The convention appears
to have been attentive to both these points: they have directed the President
to be chosen by select bodies of electors, to be deputed by the people
for that express purpose; and they have committed the appointment of senators
to the State legislatures. This mode has, in such cases, vastly the advantage
of elections by the people in their collective capacity, where the activity
of party zeal, taking the advantage of the supineness, the ignorance,
and the hopes and fears of the unwary and interested, often places men
in office by the votes of a small proportion of the electors. As the select assemblies for choosing the President, as well as the State
legislatures who appoint the senators, will in general be composed of
the most enlightened and respectable citizens, there is reason to presume
that their attention and their votes will be directed to those men only
who have become the most distinguished by their abilities and virtue,
and in whom the people perceive just grounds for confidence. The Constitution
manifests very particular attention to this object. By excluding men under
thirty-five from the first office, and those under thirty from the second,
it confines the electors to men of whom the people have had time to form
a judgment, and with respect to whom they will not be liable to be deceived
by those brilliant appearances of genius and patriotism, which, like transient
meteors, sometimes mislead as well as dazzle. If the observation be well
founded, that wise kings will always be served by able ministers, it is
fair to argue, that as an assembly of select electors possess, in a greater
degree than kings, the means of extensive and accurate information relative
to men and characters, so will their appointments bear at least equal
marks of discretion and discernment. The inference which naturally results
from these considerations is this, that the President and senators so
chosen will always be of the number of those who best understand our national
interests, whether considered in relation to the several States or to
foreign nations, who are best able to promote those interests, and whose
reputation for integrity inspires and merits confidence. With such men
the power of making treaties may be safely lodged. Although the absolute necessity of system, in the conduct of any business,
is universally known and acknowledged, yet the high importance of it in
national affairs has not yet become sufficiently impressed on the public
mind. They who wish to commit the power under consideration to a popular
assembly, composed of members constantly coming and going in quick succession,
seem not to recollect that such a body must necessarily be inadequate
to the attainment of those great objects, which require to be steadily
contemplated in all their relations and circumstances, and which can only
be approached and achieved by measures which not only talents, but also
exact information, and often much time, are necessary to concert and to
execute. It was wise, therefore, in the convention to provide, not only
that the power of making treaties should be committed to able and honest
men, but also that they should continue in place a sufficient time to
become perfectly acquainted with our national concerns, and to form and
introduce a system for the management of them. The duration prescribed
is such as will give them an opportunity of greatly extending their political
information, and of rendering their accumulating experience more and more
beneficial to their country. Nor has the convention discovered less prudence
in providing for the frequent elections of senators in such a way as to
obviate the inconvenience of periodically transferring those great affairs
entirely to new men; for by leaving a considerable residue of the old
ones in place, uniformity and order, as well as a constant succession
of official information will be preserved. There are a few who will not admit that the affairs of trade and navigation
should be regulated by a system cautiously formed and steadily pursued;
and that both our treaties and our laws should correspond with and be
made to promote it. It is of much consequence that this correspondence
and conformity be carefully maintained; and they who assent to the truth
of this position will see and confess that it is well provided for by
making concurrence of the Senate necessary both to treaties and to laws. It seldom happens in the negotiation of treaties, of whatever nature,
but that perfect SECRECY and immediate DESPATCH are sometimes requisite.
These are cases where the most useful intelligence may be obtained, if
the persons possessing it can be relieved from apprehensions of discovery.
Those apprehensions will operate on those persons whether they are actuated
by mercenary or friendly motives; and there doubtless are many of both
descriptions, who would rely on the secrecy of the President, but who
would not confide in that of the Senate, and still less in that of a large
popular Assembly. The convention have done well, therefore, in so disposing
of the power of making treaties, that although the President must, in
forming them, act by the advice and consent of the Senate, yet he will
be able to manage the business of intelligence in such a manner as prudence
may suggest. They who have turned their attention to the affairs of men, must have
perceived that there are tides in them; tides very irregular in their
duration, strength, and direction, and seldom found to run twice exactly
in the same manner or measure. To discern and to profit by these tides
in national affairs is the business of those who preside over them; and
they who have had much experience on this head inform us, that there frequently
are occasions when days, nay, even when hours, are precious. The loss
of a battle, the death of a prince, the removal of a minister, or other
circumstances intervening to change the present posture and aspect of
affairs, may turn the most favorable tide into a course opposite to our
wishes. As in the field, so in the cabinet, there are moments to be seized
as they pass, and they who preside in either should be left in capacity
to improve them. So often and so essentially have we heretofore suffered
from the want of secrecy and despatch, that the Constitution would have
been inexcusably defective, if no attention had been paid to those objects.
Those matters which in negotiations usually require the most secrecy and
the most despatch, are those preparatory and auxiliary measures which
are not otherwise important in a national view, than as they tend to facilitate
the attainment of the objects of the negotiation. For these, the President
will find no difficulty to provide; and should any circumstance occur
which requires the advice and consent of the Senate, he may at any time
convene them. Thus we see that the Constitution provides that our negotiations
for treaties shall have every advantage which can be derived from talents,
information, integrity, and deliberate investigations, on the one hand,
and from secrecy and despatch on the other. But to this plan, as to most others that have ever appeared, objections
are contrived and urged. Some are displeased with it, not on account of any errors or defects
in it, but because, as the treaties, when made, are to have the force
of laws, they should be made only by men invested with legislative authority.
These gentlemen seem not to consider that the judgments of our courts,
and the commissions constitutionally given by our governor, are as valid
and as binding on all persons whom they concern, as the laws passed by
our legislature. All constitutional acts of power, whether in the executive
or in the judicial department, have as much legal validity and obligation
as if they proceeded from the legislature; and therefore, whatever name
be given to the power of making treaties, or however obligatory they may
be when made, certain it is, that the people may, with much propriety,
commit the power to a distinct body from the legislature, the executive,
or the judicial. It surely does not follow, that because they have given
the power of making laws to the legislature, that therefore they should
likewise give them the power to do every other act of sovereignty by which
the citizens are to be bound and affected. Others, though content that treaties should be made in the mode proposed,
are averse to their being the SUPREME laws of the land. They insist, and
profess to believe, that treaties like acts of assembly, should be repealable
at pleasure. This idea seems to be new and peculiar to this country, but
new errors, as well as new truths, often appear. These gentlemen would
do well to reflect that a treaty is only another name for a bargain, and
that it would be impossible to find a nation who would make any bargain
with us, which should be binding on them ABSOLUTELY, but on us only so
long and so far as we may think proper to be bound by it. They who make
laws may, without doubt, amend or repeal them; and it will not be disputed
that they who make treaties may alter or cancel them; but still let us
not forget that treaties are made, not by only one of the contracting
parties, but by both; and consequently, that as the consent of both was
essential to their formation at first, so must it ever afterwards be to
alter or cancel them. The proposed Constitution, therefore, has not in
the least extended the obligation of treaties. They are just as binding,
and just as far beyond the lawful reach of legislative acts now, as they
will be at any future period, or under any form of government. However useful jealousy may be in republics, yet when like bile in the
natural, it abounds too much in the body politic, the eyes of both become
very liable to be deceived by the delusive appearances which that malady
casts on surrounding objects. From this cause, probably, proceed the fears
and apprehensions of some, that the President and Senate may make treaties
without an equal eye to the interests of all the States. Others suspect
that two thirds will oppress the remaining third, and ask whether those
gentlemen are made sufficiently responsible for their conduct; whether,
if they act corruptly, they can be punished; and if they make disadvantageous
treaties, how are we to get rid of those treaties? As all the States are equally represented in the Senate, and by men the
most able and the most willing to promote the interests of their constituents,
they will all have an equal degree of influence in that body, especially
while they continue to be careful in appointing proper persons, and to
insist on their punctual attendance. In proportion as the United States
assume a national form and a national character, so will the good of the
whole be more and more an object of attention, and the government must
be a weak one indeed, if it should forget that the good of the whole can
only be promoted by advancing the good of each of the parts or members
which compose the whole. It will not be in the power of the President
and Senate to make any treaties by which they and their families and estates
will not be equally bound and affected with the rest of the community;
and, having no private interests distinct from that of the nation, they
will be under no temptations to neglect the latter. As to corruption, the case is not supposable. He must either have been
very unfortunate in his intercourse with the world, or possess a heart
very susceptible of such impressions, who can think it probable that the
President and two thirds of the Senate will ever be capable of such unworthy
conduct. The idea is too gross and too invidious to be entertained. But
in such a case, if it should ever happen, the treaty so obtained from
us would, like all other fraudulent contracts, be null and void by the
law of nations. With respect to their responsibility, it is difficult to conceive how
it could be increased. Every consideration that can influence the human
mind, such as honor, oaths, reputations, conscience, the love of country,
and family affections and attachments, afford security for their fidelity.
In short, as the Constitution has taken the utmost care that they shall
be men of talents and integrity, we have reason to be persuaded that the
treaties they make will be as advantageous as, all circumstances considered,
could be made; and so far as the fear of punishment and disgrace can operate,
that motive to good behavior is amply afforded by the article on the subject
of impeachments.