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.









THE FEDERALIST.