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The Treaty-Making Power of the Executive
To the People of the State of New York:
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.
Publius.
Hamilton For the Independent Journal.
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.''