fp75.txt

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 defense, 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, nor 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 co-operation 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 a 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 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 then 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, there 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 co-operation 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.