The Powers of the Senate

From the New York Packet.

Friday, March 7, 1788.

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.