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FEDERALIST No. 64

The Powers of the Senate
From the New York Packet.
Friday, March 7, 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.