The Treaty-Making Power of the Executive
For the Independent Journal.
Wednesday, March 26, 1788


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 dispatch, 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

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.

Text supplied by
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The Constitution Society
& The Avalon Project
Philosophy of
Socialism in America

"The struggle of History is not
between the bourgeoisie and the
proletariat; it is between government
and the governed."

Jerry McDaniel
The Illinois Conservative