FEDERALIST No. 75

The Treaty-Making Power of the Executive

For the Independent Journal.

HAMILTON

To the People of the State of New York:

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.

PUBLIUS.