Chapter: 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

 Hamilton defends the treaty-making procedures outlined in the Constitution. He responds to the criticism that the Constitution wrongly mixes the legislative and executive branches of government by affording both a role in making and approving treaties. Hamilton argues that act of treaty-making does not fit neatly into the typical purview of either the executive or legislative branch. Therefore, affording a role to both is appropriate. Other critics claimed that the power to make treaties should be limited to the president. Hamilton responds that, unlike European monarchs, the president is only in office for a limited period of time. He may therefore be tempted to sign a treaty detrimental to the nation but beneficial to his private interests since he will eventually return to being a private citizen . It is therefore necessary that his power be held in check by the legislature. Others asserted that the Congress should have even greater authority over treaty making. However, Hamilton responds that this would introduce unnecessary delays and inefficiencies to the process and weaken the American negotiating position.

