FEDERALIST No. 75



The Treaty-Making Power of the Executive

For the Independent Journal.

Wednesday, March 26, 1788



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