1787 Federalist 64 · Founding Made Plain

11787 Federalist No. 64

2The Powers of the Senate

3From the New York Packet.

4Friday, March 7, 1788.

5JAY

6To the People of the State of New York:

7IT IS a just and not a new observation,

8 that enemies to particular persons,

9 and opponents to particular measures,

10 seldom confine their censures

11 to such things only in either

12 as are worthy of blame.

13Unless on this principle,

14 it is difficult to explain the motives

15 of their conduct,

16 who condemn the proposed Constitution

17 in the aggregate,

18 and treat with severity some of the most

19 unexceptionable articles in it.

20The second section gives power to the President,

21 "BY AND WITH THE ADVICE AND CONSENT OF THE SENATE,

22 TO MAKE TREATIES,

23 PROVIDED TWO THIRDS

24 OF THE SENATORS PRESENT CONCUR."

25The power of making treaties is an important one,

26 especially as it relates to war, peace, and commerce;

27 and it should not be delegated but in such a mode,

28 and with such precautions,

29 as will afford the highest security

30 that it will be exercised

31 by men the best qualified for the purpose,

32 and in the manner most conducive

33 to the public good.

34The convention appears to have been attentive

35 to both these points:

36 they have directed the President to be chosen

37 by select bodies of electors,

38 to be deputed by the people

39 for that express purpose;

40 and they have committed the appointment of senators

41 to the State legislatures.

42This mode has, in such cases,

43 vastly the advantage of elections by the people

44 in their collective capacity,

45 where the activity of party zeal,

46 taking the advantage of the supineness,

47 the ignorance, and the hopes and fears

48 of the unwary and interested,

49 often places men in office

50 by the votes of a small proportion of the electors.

51As the select assemblies for choosing the President,

52 as well as the State legislatures

53 who appoint the senators,

54 will in general be composed

55 of the most enlightened and respectable citizens,

56 there is reason to presume

57 that their attention and their votes

58 will be directed to those men only

59 who have become the most distinguished

60 by their abilities and virtue,

61 and in whom the people perceive

62 just grounds for confidence.

63The Constitution manifests very particular attention

64 to this object.

65By excluding men under thirty-five from the first office,

66 and those under thirty from the second,

67 it confines the electors to men

68 of whom the people have had time

69 to form a judgment,

70 and with respect to whom they will not be liable

71 to be deceived by those brilliant appearances

72 of genius and patriotism,

73 which, like transient meteors,

74 sometimes mislead as well as dazzle.

75If the observation be well founded,

76 that wise kings will always be served

77 by able ministers,

78 it is fair to argue,

79 that as an assembly of select electors possess,

80 in a greater degree than kings,

81 the means of extensive and accurate information

82 relative to men and characters,

83 so will their appointments bear

84 at least equal marks

85 of discretion and discernment.

86The inference which naturally results

87 from these considerations is this,

88 that the President and senators so chosen

89 will always be of the number of those

90 who best understand our national interests,

91 whether considered in relation

92 to the several States or to foreign nations,

93 who are best able to promote those interests,

94 and whose reputation for integrity

95 inspires and merits confidence.

96With such men the power of making treaties

97 may be safely lodged.

98Although the absolute necessity of system,

99 in the conduct of any business,

100 is universally known and acknowledged,

101 yet the high importance of it in national affairs

102 has not yet become sufficiently impressed

103 on the public mind.

104They who wish to commit the power under consideration

105 to a popular assembly,

106 composed of members constantly coming and going

107 in quick succession,

108 seem not to recollect

109 that such a body must necessarily be inadequate

110 to the attainment of those great objects,

111 which require to be steadily contemplated

112 in all their relations and circumstances,

113 and which can only be approached and achieved

114 by measures which not only talents,

115 but also exact information, and often much time,

116 are necessary to concert and to execute.

117It was wise, therefore, in the convention to provide,

118 not only that the power of making treaties

119 should be committed to able and honest men,

120 but also that they should continue in place

121 a sufficient time

122 to become perfectly acquainted

123 with our national concerns,

124 and to form and introduce a a system

125 for the management of them.

126The duration prescribed is such

127 as will give them an opportunity

128 of greatly extending their political information,

129 and of rendering their accumulating experience

130 more and more beneficial to their country.

131Nor has the convention discovered less prudence

132 in providing for the frequent elections of senators

133 in such a way as to obviate the inconvenience

134 of periodically transferring those great affairs

135 entirely to new men;

136 for by leaving a considerable residue of the old ones

137 in place,

138 uniformity and order,

139 as well as a constant succession

140 of official information

141 will be preserved.

142There are a few who will not admit

143 that the affairs of trade and navigation

144 should be regulated by a system

145 cautiously formed and steadily pursued;

146 and that both our treaties and our laws

147 should correspond with and be made to promote it.

148It is of much consequence

149 that this correspondence and conformity

150 be carefully maintained;

151 and they who assent to the truth of this position

152 will see and confess

153 that it is well provided for

154 by making concurrence of the Senate necessary

155 both to treaties and to laws.

156It seldom happens in the negotiation of treaties,

157 of whatever nature,

158 but that perfect SECRECY and immediate DESPATCH

159 are sometimes requisite.

160These are cases where the most useful intelligence

161 may be obtained,

162 if the persons possessing it

163 can be relieved from apprehensions of discovery.

164Those apprehensions will operate on those persons

165 whether they are actuated by mercenary

166 or friendly motives;

167 and there doubtless are many of both descriptions,

168 who would rely on the secrecy of the President,

169 but who would not confide in that of the Senate,

170 and still less in that of a large popular Assembly.

171The convention have done well, therefore,

172 in so disposing of the power of making treaties,

173 that although the President must, in forming them,

174 act by the advice and consent of the Senate,

175 yet he will be able to manage the business

176 of intelligence

177 in such a manner as prudence may suggest.

178They who have turned their attention

179 to the affairs of men,

180 must have perceived that there are tides in them;

181 tides very irregular in their duration,

182 strength, and direction,

183 and seldom found to run twice

184 exactly in the same manner or measure.

185To discern and to profit by these tides

186 in national affairs

187 is the business of those who preside over them;

188 and they who have had much experience on this head

189 inform us,

190 that there frequently are occasions

191 when days, nay, even when hours, are precious.

192The loss of a battle, the death of a prince,

193 the removal of a minister,

194 or other circumstances intervening

195 to change the present posture

196 and aspect of affairs,

197 may turn the most favorable tide

198 into a course opposite to our wishes.

199As in the field, so in the cabinet,

200 there are moments to be seized as they pass,

201 and they who preside in either

202 should be left in capacity to improve them.

203So often and so essentially have we heretofore suffered

204 from the want of secrecy and despatch,

205 that the Constitution would have been

206 inexcusably defective,

207 if no attention had been paid to those objects.

208Those matters which in negotiations

209 usually require the most secrecy and the most despatch,

210 are those preparatory and auxiliary measures

211 which are not otherwise important

212 in a national view,

213 than as they tend to facilitate the attainment

214 of the objects of the negotiation.

215For these, the President will find

216 no difficulty to provide;

217 and should any circumstance occur

218 which requires the advice

219 and consent of the Senate,

220 he may at any time convene them.

221Thus we see that the Constitution provides

222 that our negotiations for treaties

223 shall have every advantage

224 which can be derived from talents, information,

225 integrity, and deliberate investigations,

226 on the one hand,

227 and from secrecy and despatch on the other.

228But to this plan,

229 as to most others that have ever appeared,

230 objections are contrived and urged.

231Some are displeased with it,

232 not on account of any errors or defects in it,

233 but because, as the treaties, when made,

234 are to have the force of laws,

235 they should be made only by men

236 invested with legislative authority.

237These gentlemen seem not to consider

238 that the judgments of our courts,

239 and the commissions constitutionally given

240 by our governor,

241 are as valid and as binding

242 on all persons whom they concern,

243 as the laws passed by our legislature.

244All constitutional acts of power,

245 whether in the executive or in the judicial department,

246 have as much legal validity and obligation

247 as if they proceeded from the legislature;

248 and therefore, whatever name be given

249 to the power of making treaties,

250 or however obligatory they may be when made,

251 certain it is,

252 that the people may, with much propriety,

253 commit the power to a distinct body

254 from the legislature,

255 the executive, or the judicial.

256It surely does not follow,

257 that because they have given the power of making laws

258 to the legislature,

259 that therefore they should likewise give them

260 the power to do every other act of sovereignty

261 by which the citizens are to be bound and affected.

262Others, though content that treaties should be made

263 in the mode proposed,

264 are averse to their being the SUPREME laws of the land.

265They insist, and profess to believe,

266 that treaties like acts of assembly,

267 should be repealable at pleasure.

268This idea seems to be new and peculiar to this country,

269 but new errors, as well as new truths, often appear.

270These gentlemen would do well to reflect

271 that a treaty is only another name for a bargain,

272 and that it would be impossible to find a nation

273 who would make any bargain with us,

274 which should be binding on them ABSOLUTELY,

275 but on us only so long and so far

276 as we may think proper to be bound by it.

277They who make laws may, without doubt,

278 amend or repeal them;

279 and it will not be disputed

280 that they who make treaties

281 may alter or cancel them;

282 but still let us not forget

283 that treaties are made,

284 not by only one of the contracting parties,

285 but by both;

286 and consequently,

287 that as the consent of both was essential

288 to their formation at first,

289 so must it ever afterwards be

290 to alter or cancel them.

291The proposed Constitution, therefore,

292 has not in the least extended

293 the obligation of treaties.

294They are just as binding,

295 and just as far beyond the lawful reach

296 of legislative acts now,

297 as they will be at any future period,

298 or under any form of government.

299However useful jealousy may be in republics,

300 yet when like bile in the natural,

301 it abounds too much in the body politic,

302 the eyes of both become very liable

303 to be deceived by the delusive appearances

304 which that malady casts on surrounding objects.

305From this cause, probably,

306 proceed the fears and apprehensions of some,

307 that the President and Senate may make treaties

308 without an equal eye to the interests

309 of all the States.

310Others suspect that two thirds will oppress

311 the remaining third,

312 and ask whether those gentlemen

313 are made sufficiently responsible

314 for their conduct;

315 whether, if they act corruptly,

316 they can be punished;

317 and if they make disadvantageous treaties,

318 how are we to get rid of those treaties?

319As all the States are equally represented in the Senate,

320 and by men the most able and the most willing

321 to promote the interests of their constituents,

322 they will all have an equal degree of influence

323 in that body,

324 especially while they continue to be careful

325 in appointing proper persons,

326 and to insist on their punctual attendance.

327In proportion as the United States

328 assume a national form and a national character,

329 so will the good of the whole

330 be more and more an object of attention,

331 and the government must be a weak one indeed,

332 if it should forget

333 that the good of the whole can only be promoted

334 by advancing the good of each of the parts

335 or members which compose the whole.

336It will not be in the power of the President and Senate

337 to make any treaties

338 by which they and their families and estates

339 will not be equally bound and affected

340 with the rest of the community;

341 and, having no private interests

342 distinct from that of the nation,

343 they will be under no temptations

344 to neglect the latter.

345As to corruption, the case is not supposable.

346He must either have been very unfortunate

347 in his intercourse with the world,

348 or possess a heart very susceptible

349 of such impressions,

350 who can think it probable

351 that the President and two thirds of the Senate

352 will ever be capable of such unworthy conduct.

353The idea is too gross and too invidious to be entertained.

354But in such a case, if it should ever happen,

355 the treaty so obtained from us would,

356 like all other fraudulent contracts,

357 be null and void by the law of nations.

358With respect to their responsibility,

359 it is difficult to conceive how it could be increased.

360Every consideration that can influence the human mind,

361 such as honor, oaths, reputations, conscience,

362 the love of country,

363 and family affections and attachments,

364 afford security for their fidelity.

365In short, as the Constitution has taken the utmost care

366 that they shall be men of talents and integrity,

367 we have reason to be persuaded

368 that the treaties they make

369 will be as advantageous as,

370 all circumstances considered, could be made;

371 and so far as the fear of punishment and disgrace

372 can operate,

373 that motive to good behavior is amply afforded

374 by the article on the subject of impeachments.

375PUBLIUS.