FEDERALIST No. 64



The Powers of the Senate

From the Independent Journal.

Wednesday, March 5, 1788.



JAY



To the People of the State of New York:



IT IS a just and not a new observation, that enemies to particular

persons, and opponents to particular measures, seldom confine their

censures to such things only in either as are worthy of blame. Unless on

this principle, it is difficult to explain the motives of their conduct,

who condemn the proposed Constitution in the aggregate, and treat with

severity some of the most unexceptionable articles in it.



The second section gives power to the President, "BY AND WITH THE ADVICE

AND CONSENT OF THE SENATE, TO MAKE TREATIES, PROVIDED TWO THIRDS OF THE

SENATORS PRESENT CONCUR."



The power of making treaties is an important one, especially as it

relates to war, peace, and commerce; and it should not be delegated but

in such a mode, and with such precautions, as will afford the highest

security that it will be exercised by men the best qualified for the

purpose, and in the manner most conducive to the public good. The

convention appears to have been attentive to both these points: they

have directed the President to be chosen by select bodies of electors,

to be deputed by the people for that express purpose; and they have

committed the appointment of senators to the State legislatures. This

mode has, in such cases, vastly the advantage of elections by the people

in their collective capacity, where the activity of party zeal, taking

the advantage of the supineness, the ignorance, and the hopes and fears

of the unwary and interested, often places men in office by the votes of

a small proportion of the electors.



As the select assemblies for choosing the President, as well as the

State legislatures who appoint the senators, will in general be composed

of the most enlightened and respectable citizens, there is reason to

presume that their attention and their votes will be directed to those

men only who have become the most distinguished by their abilities and

virtue, and in whom the people perceive just grounds for confidence. The

Constitution manifests very particular attention to this object. By

excluding men under thirty-five from the first office, and those under

thirty from the second, it confines the electors to men of whom the

people have had time to form a judgment, and with respect to whom they

will not be liable to be deceived by those brilliant appearances of

genius and patriotism, which, like transient meteors, sometimes mislead

as well as dazzle. If the observation be well founded, that wise kings

will always be served by able ministers, it is fair to argue, that as an

assembly of select electors possess, in a greater degree than kings, the

means of extensive and accurate information relative to men and

characters, so will their appointments bear at least equal marks of

discretion and discernment. The inference which naturally results from

these considerations is this, that the President and senators so chosen

will always be of the number of those who best understand our national

interests, whether considered in relation to the several States or to

foreign nations, who are best able to promote those interests, and whose

reputation for integrity inspires and merits confidence. With such men

the power of making treaties may be safely lodged.



Although the absolute necessity of system, in the conduct of any

business, is universally known and acknowledged, yet the high importance

of it in national affairs has not yet become sufficiently impressed on

the public mind. They who wish to commit the power under consideration

to a popular assembly, composed of members constantly coming and going

in quick succession, seem not to recollect that such a body must

necessarily be inadequate to the attainment of those great objects,

which require to be steadily contemplated in all their relations and

circumstances, and which can only be approached and achieved by measures

which not only talents, but also exact information, and often much time,

are necessary to concert and to execute. It was wise, therefore, in the

convention to provide, not only that the power of making treaties should

be committed to able and honest men, but also that they should continue

in place a sufficient time to become perfectly acquainted with our

national concerns, and to form and introduce a a system for the

management of them. The duration prescribed is such as will give them an

opportunity of greatly extending their political information, and of

rendering their accumulating experience more and more beneficial to

their country. Nor has the convention discovered less prudence in

providing for the frequent elections of senators in such a way as to

obviate the inconvenience of periodically transferring those great

affairs entirely to new men; for by leaving a considerable residue of

the old ones in place, uniformity and order, as well as a constant

succession of official information will be preserved.



There are a few who will not admit that the affairs of trade and

navigation should be regulated by a system cautiously formed and

steadily pursued; and that both our treaties and our laws should

correspond with and be made to promote it. It is of much consequence

that this correspondence and conformity be carefully maintained; and

they who assent to the truth of this position will see and confess that

it is well provided for by making concurrence of the Senate necessary

both to treaties and to laws.



It seldom happens in the negotiation of treaties, of whatever nature,

but that perfect SECRECY and immediate DESPATCH are sometimes requisite.

These are cases where the most useful intelligence may be obtained, if

the persons possessing it can be relieved from apprehensions of

discovery. Those apprehensions will operate on those persons whether

they are actuated by mercenary or friendly motives; and there doubtless

are many of both descriptions, who would rely on the secrecy of the

President, but who would not confide in that of the Senate, and still

less in that of a large popular Assembly. The convention have done well,

therefore, in so disposing of the power of making treaties, that

although the President must, in forming them, act by the advice and

consent of the Senate, yet he will be able to manage the business of

intelligence in such a manner as prudence may suggest.



They who have turned their attention to the affairs of men, must have

perceived that there are tides in them; tides very irregular in their

duration, strength, and direction, and seldom found to run twice exactly

in the same manner or measure. To discern and to profit by these tides

in national affairs is the business of those who preside over them; and

they who have had much experience on this head inform us, that there

frequently are occasions when days, nay, even when hours, are precious.

The loss of a battle, the death of a prince, the removal of a minister,

or other circumstances intervening to change the present posture and

aspect of affairs, may turn the most favorable tide into a course

opposite to our wishes. As in the field, so in the cabinet, there are

moments to be seized as they pass, and they who preside in either should

be left in capacity to improve them. So often and so essentially have we

heretofore suffered from the want of secrecy and despatch, that the

Constitution would have been inexcusably defective, if no attention had

been paid to those objects. Those matters which in negotiations usually

require the most secrecy and the most despatch, are those preparatory

and auxiliary measures which are not otherwise important in a national

view, than as they tend to facilitate the attainment of the objects of

the negotiation. For these, the President will find no difficulty to

provide; and should any circumstance occur which requires the advice and

consent of the Senate, he may at any time convene them. Thus we see that

the Constitution provides that our negotiations for treaties shall have

every advantage which can be derived from talents, information,

integrity, and deliberate investigations, on the one hand, and from

secrecy and despatch on the other.



But to this plan, as to most others that have ever appeared, objections

are contrived and urged.



Some are displeased with it, not on account of any errors or defects in

it, but because, as the treaties, when made, are to have the force of

laws, they should be made only by men invested with legislative

authority. These gentlemen seem not to consider that the judgments of

our courts, and the commissions constitutionally given by our governor,

are as valid and as binding on all persons whom they concern, as the

laws passed by our legislature. All constitutional acts of power,

whether in the executive or in the judicial department, have as much

legal validity and obligation as if they proceeded from the legislature;

and therefore, whatever name be given to the power of making treaties,

or however obligatory they may be when made, certain it is, that the

people may, with much propriety, commit the power to a distinct body

from the legislature, the executive, or the judicial. It surely does not

follow, that because they have given the power of making laws to the

legislature, that therefore they should likewise give them the power to

do every other act of sovereignty by which the citizens are to be bound

and affected.



Others, though content that treaties should be made in the mode

proposed, are averse to their being the SUPREME laws of the land. They

insist, and profess to believe, that treaties like acts of assembly,

should be repealable at pleasure. This idea seems to be new and peculiar

to this country, but new errors, as well as new truths, often appear.

These gentlemen would do well to reflect that a treaty is only another

name for a bargain, and that it would be impossible to find a nation who

would make any bargain with us, which should be binding on them

ABSOLUTELY, but on us only so long and so far as we may think proper to

be bound by it. They who make laws may, without doubt, amend or repeal

them; and it will not be disputed that they who make treaties may alter

or cancel them; but still let us not forget that treaties are made, not

by only one of the contracting parties, but by both; and consequently,

that as the consent of both was essential to their formation at first,

so must it ever afterwards be to alter or cancel them. The proposed

Constitution, therefore, has not in the least extended the obligation of

treaties. They are just as binding, and just as far beyond the lawful

reach of legislative acts now, as they will be at any future period, or

under any form of government.



However useful jealousy may be in republics, yet when like bile in the

natural, it abounds too much in the body politic, the eyes of both

become very liable to be deceived by the delusive appearances which that

malady casts on surrounding objects. From this cause, probably, proceed

the fears and apprehensions of some, that the President and Senate may

make treaties without an equal eye to the interests of all the States.

Others suspect that two thirds will oppress the remaining third, and ask

whether those gentlemen are made sufficiently responsible for their

conduct; whether, if they act corruptly, they can be punished; and if

they make disadvantageous treaties, how are we to get rid of those

treaties?



As all the States are equally represented in the Senate, and by men the

most able and the most willing to promote the interests of their

constituents, they will all have an equal degree of influence in that

body, especially while they continue to be careful in appointing proper

persons, and to insist on their punctual attendance. In proportion as

the United States assume a national form and a national character, so

will the good of the whole be more and more an object of attention, and

the government must be a weak one indeed, if it should forget that the

good of the whole can only be promoted by advancing the good of each of

the parts or members which compose the whole. It will not be in the

power of the President and Senate to make any treaties by which they and

their families and estates will not be equally bound and affected with

the rest of the community; and, having no private interests distinct

from that of the nation, they will be under no temptations to neglect

the latter.



As to corruption, the case is not supposable. He must either have been

very unfortunate in his intercourse with the world, or possess a heart

very susceptible of such impressions, who can think it probable that the

President and two thirds of the Senate will ever be capable of such

unworthy conduct. The idea is too gross and too invidious to be

entertained. But in such a case, if it should ever happen, the treaty so

obtained from us would, like all other fraudulent contracts, be null and

void by the law of nations.



With respect to their responsibility, it is difficult to conceive how it

could be increased. Every consideration that can influence the human

mind, such as honor, oaths, reputations, conscience, the love of

country, and family affections and attachments, afford security for

their fidelity. In short, as the Constitution has taken the utmost care

that they shall be men of talents and integrity, we have reason to be

persuaded that the treaties they make will be as advantageous as, all

circumstances considered, could be made; and so far as the fear of

punishment and disgrace can operate, that motive to good behavior is

amply afforded by the article on the subject of impeachments.



PUBLIUS