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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.