1787 Federalist 75 · Founding Made Plain

11787 Federalist No. 75

2The Treaty-Making Power of the Executive

3For the Independent Journal.

4HAMILTON

5To the People of the State of New York:

6THE President is to have power,

7 "by and with the advice and consent of the Senate,

8 to make treaties,

9 provided two thirds of the senators

10 present concur."

11Though this provision has been assailed,

12 on different grounds,

13 with no small degree of vehemence,

14 I scruple not to declare my firm persuasion,

15 that it is one of the best digested

16 and most unexceptionable parts of the plan.

17One ground of objection

18 is the trite topic of the intermixture of powers;

19 some contending that the President ought alone

20 to possess the power of making treaties;

21 others, that it ought to have been

22 exclusively deposited

23 in the Senate.

24Another source of objection is derived

25 from the small number of persons

26 by whom a treaty may be made.

27Of those who espouse this objection,

28 a part are of opinion

29 that the House of Representatives

30 ought to have been associated in the business,

31 while another part seem to think

32 that nothing more was necessary

33 than to have substituted two thirds

34 of ALL the members of the Senate,

35 to two thirds of the members PRESENT.

36As I flatter myself the observations made

37 in a preceding number upon this part of the plan

38 must have sufficed to place it, to a discerning eye,

39 in a very favorable light,

40 I shall here content myself

41 with offering only some supplementary remarks,

42 principally with a view to the objections

43 which have been just stated.

44With regard to the intermixture of powers,

45 I shall rely upon the explanations already given

46 in other places,

47 of the true sense of the rule

48 upon which that objection is founded;

49 and shall take it for granted,

50 as an inference from them,

51 that the union of the Executive with the Senate,

52 in the article of treaties,

53 is no infringement of that rule.

54I venture to add,

55 that the particular nature of the power

56 of making treaties

57 indicates a peculiar propriety in that union.

58Though several writers on the subject of government

59 place that power in the class of executive authorities,

60 yet this is evidently an arbitrary disposition;

61 for if we attend carefully to its operation,

62 it will be found to partake more of the legislative

63 than of the executive character,

64 though it does not seem strictly to fall

65 within the definition of either of them.

66The essence of the legislative authority is to enact laws,

67 or, in other words,

68 to prescribe rules for the regulation

69 of the society;

70 while the execution of the laws,

71 and the employment of the common strength,

72 either for this purpose or for the common defense,

73 seem to comprise all the functions

74 of the executive magistrate.

75The power of making treaties is, plainly,

76 neither the one nor the other.

77It relates neither to the execution of the subsisting laws,

78 nor to the enaction of new ones;

79 and still less to an exertion of the common strength.

80Its objects are CONTRACTS with foreign nations,

81 which have the force of law,

82 but derive it from the obligations of good faith.

83They are not rules prescribed by the sovereign

84 to the subject,

85 but agreements between sovereign and sovereign.

86The power in question seems therefore

87 to form a distinct department,

88 and to belong, properly,

89 neither to the legislative nor to the executive.

90The qualities elsewhere detailed

91 as indispensable in the management

92 of foreign negotiations,

93 point out the Executive

94 as the most fit agent in those transactions;

95 while the vast importance of the trust,

96 and the operation of treaties as laws,

97 plead strongly for the participation

98 of the whole or a portion of the legislative body

99 in the office of making them.

100However proper or safe it may be

101 in governments where the executive magistrate

102 is an hereditary monarch,

103 to commit to him the entire power of making treaties,

104 it would be utterly unsafe and improper

105 to intrust that power

106 to an elective magistrate of four years' duration.

107It has been remarked, upon another occasion,

108 and the remark is unquestionably just,

109 that an hereditary monarch,

110 though often the oppressor of his people,

111 has personally too much stake in the government

112 to be in any material danger

113 of being corrupted by foreign powers.

114But a man raised from the station of a private citizen

115 to the rank of chief magistrate,

116 possessed of a moderate or slender fortune,

117 and looking forward to a period not very remote

118 when he may probably be obliged to return

119 to the station from which he was taken,

120 might sometimes be under temptations

121 to sacrifice his duty to his interest,

122 which it would require superlative virtue

123 to withstand.

124An avaricious man might be tempted

125 to betray the interests of the state

126 to the acquisition of wealth.

127An ambitious man might make his own aggrandizement,

128 by the aid of a foreign power,

129 the price of his treachery to his constituents.

130The history of human conduct

131 does not warrant that exalted opinion of human virtue

132 which would make it wise in a nation

133 to commit interests of so delicate

134 and momentous a kind,

135 as those which concern its intercourse

136 with the rest of the world,

137 to the sole disposal of a magistrate

138 created and circumstanced

139 as would be a President of the United States.

140To have intrusted the power of making treaties

141 to the Senate alone,

142 would have been to relinquish the benefits

143 of the constitutional agency of the President

144 in the conduct of foreign negotiations.

145It is true that the Senate would, in that case,

146 have the option of employing him in this capacity,

147 but they would also have the option

148 of letting it alone,

149 and pique or cabal might induce the latter

150 rather than the former.

151Besides this,

152 the ministerial servant of the Senate

153 could not be expected to enjoy

154 the confidence and respect of foreign powers

155 in the same degree

156 with the constitutional representatives

157 of the nation,

158 and, of course, would not be able to act

159 with an equal degree of weight or efficacy.

160While the Union would, from this cause,

161 lose a considerable advantage

162 in the management of its external concerns,

163 the people would lose the additional security

164 which would result from the co-operation

165 of the Executive.

166Though it would be imprudent to confide in him solely

167 so important a trust,

168 yet it cannot be doubted

169 that his participation would materially add

170 to the safety of the society.

171It must indeed be clear to a demonstration

172 that the joint possession of the power in question,

173 by the President and Senate,

174 would afford a greater prospect of security,

175 than the separate possession of it

176 by either of them.

177And whoever has maturely weighed the circumstances

178 which must concur in the appointment of a President,

179 will be satisfied that the office

180 will always bid fair to be filled

181 by men of such characters

182 as to render their concurrence

183 in the formation of treaties peculiarly desirable,

184 as well on the score of wisdom,

185 as on that of integrity.

186The remarks made in a former number,

187 which have been alluded to

188 in another part of this paper,

189 will apply with conclusive force

190 against the admission

191 of the House of Representatives

192 to a share in the formation of treaties.

193The fluctuating and, taking its future increase

194 into the account,

195 the multitudinous composition of that body,

196 forbid us to expect in it those qualities

197 which are essential

198 to the proper execution of such a trust.

199Accurate and comprehensive knowledge of foreign politics;

200 a steady and systematic adherence to the same views;

201 a nice and uniform sensibility to national character;

202 decision, SECRECY, and despatch,

203 are incompatible with the genius

204 of a body so variable and so numerous.

205The very complication of the business,

206 by introducing a necessity of the concurrence

207 of so many different bodies,

208 would of itself afford a solid objection.

209The greater frequency of the calls

210 upon the House of Representatives,

211 and the greater length of time

212 which it would often be necessary

213 to keep them together when convened,

214 to obtain their sanction

215 in the progressive stages of a treaty,

216 would be a source of so great inconvenience

217 and expense

218 as alone ought to condemn the project.

219The only objection which remains to be canvassed,

220 is that which would substitute the proportion

221 of two thirds of all the members

222 composing the senatorial body,

223 to that of two thirds of the members PRESENT.

224It has been shown,

225 under the second head of our inquiries,

226 that all provisions which require more

227 than the majority

228 of any body to its resolutions,

229 have a direct tendency

230 to embarrass the operations of the government,

231 and an indirect one

232 to subject the sense of the majority

233 to that of the minority.

234This consideration seems sufficient

235 to determine our opinion,

236 that the convention have gone as far

237 in the endeavor to secure the advantage of numbers

238 in the formation of treaties

239 as could have been reconciled

240 either with the activity of the public councils

241 or with a reasonable regard

242 to the major sense of the community.

243If two thirds of the whole number of members

244 had been required,

245 it would, in many cases,

246 from the non-attendance of a part,

247 amount in practice to a necessity of unanimity.

248And the history of every political establishment

249 in which this principle has prevailed,

250 is a history of impotence, perplexity, and disorder.

251Proofs of this position might be adduced

252 from the examples of the Roman Tribuneship,

253 the Polish Diet,

254 and the States-General of the Netherlands,

255 did not an example at home

256 render foreign precedents unnecessary.

257To require a fixed proportion of the whole body

258 would not, in all probability,

259 contribute to the advantages of a numerous agency,

260 better then merely to require a proportion

261 of the attending members.

262The former, by making a determinate number

263 at all times requisite to a resolution,

264 diminishes the motives to punctual attendance.

265The latter, by making the capacity of the body

266 to depend on a PROPORTION

267 which may be varied by the absence or presence

268 of a single member,

269 has the contrary effect.

270And as, by promoting punctuality,

271 it tends to keep the body complete,

272 there is great likelihood

273 that its resolutions would generally be dictated

274 by as great a number in this case as in the other;

275 while there would be much fewer occasions of delay.

276It ought not to be forgotten

277 that, under the existing Confederation,

278 two members MAY, and usually DO, represent a State;

279 whence it happens that Congress,

280 who now are solely invested

281 with ALL THE POWERS of the Union,

282 rarely consist of a greater number of persons

283 than would compose the intended Senate.

284If we add to this,

285 that as the members vote by States,

286 and that where there is only a single member present

287 from a State, his vote is lost,

288 it will justify a supposition

289 that the active voices in the Senate,

290 where the members are to vote individually,

291 would rarely fall short in number

292 of the active voices in the existing Congress.

293When, in addition to these considerations,

294 we take into view the co-operation of the President,

295 we shall not hesitate to infer

296 that the people of America

297 would have greater security

298 against an improper use of the power

299 of making treaties,

300 under the new Constitution,

301 than they now enjoy under the Confederation.

302And when we proceed still one step further,

303 and look forward to the probable augmentation

304 of the Senate, by the erection of new States,

305 we shall not only perceive ample ground of confidence

306 in the sufficiency of the members

307 to whose agency that power will be intrusted,

308 but we shall probably be led to conclude

309 that a body more numerous than the Senate

310 would be likely to become,

311 would be very little fit

312 for the proper discharge of the trust.

313PUBLIUS.