has, if I mistake not, been only contested in relation to the crime of
treason. This, it has been urged, ought to have depended upon the assent
of one, or both, of the branches of the legislative body. I shall not
deny that there are strong reasons to be assigned for requiring in this
particular the concurrence of that body, or of a part of it. As treason
is a crime levelled at the immediate being of the society, when the laws
have once ascertained the guilt of the offender, there seems a fitness
in referring the expediency of an act of mercy towards him to the
judgment of the legislature. And this ought the rather to be the case,
as the supposition of the connivance of the Chief Magistrate ought not
to be entirely excluded. But there are also strong objections to such
a plan. It is not to be doubted, that a single man of prudence and good
sense is better fitted, in delicate conjunctures, to balance the motives
which may plead for and against the remission of the punishment, than
any numerous body whatever. It deserves particular attention, that
treason will often be connected with seditions which embrace a large
proportion of the community; as lately happened in Massachusetts. In
every such case, we might expect to see the representation of the people
tainted with the same spirit which had given birth to the offense. And
when parties were pretty equally matched, the secret sympathy of the
friends and favorers of the condemned person, availing itself of the
good-nature and weakness of others, might frequently bestow impunity
where the terror of an example was necessary. On the other hand,
when the sedition had proceeded from causes which had inflamed the
resentments of the major party, they might often be found obstinate and
inexorable, when policy demanded a conduct of forbearance and clemency.
But the principal argument for reposing the power of pardoning in this
case to the Chief Magistrate is this: in seasons of insurrection or
rebellion, there are often critical moments, when a well-timed offer of
pardon to the insurgents or rebels may restore the tranquillity of the
commonwealth; and which, if suffered to pass unimproved, it may never
be possible afterwards to recall. The dilatory process of convening the
legislature, or one of its branches, for the purpose of obtaining its
sanction to the measure, would frequently be the occasion of letting
slip the golden opportunity. The loss of a week, a day, an hour, may
sometimes be fatal. If it should be observed, that a discretionary
power, with a view to such contingencies, might be occasionally
conferred upon the President, it may be answered in the first place,
that it is questionable, whether, in a limited Constitution, that
power could be delegated by law; and in the second place, that it would
generally be impolitic beforehand to take any step which might hold out
the prospect of impunity. A proceeding of this kind, out of the usual
course, would be likely to be construed into an argument of timidity or
of weakness, and would have a tendency to embolden guilt.
PUBLIUS
FEDERALIST No. 75
The Treaty-Making Power of the Executive
For the Independent Journal. Wednesday, March 26, 1788
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
FEDERALIST No. 76
The Appointing Power of the Executive
From the New York Packet. Tuesday, April 1, 1788.
HAMILTON
To the People of the State of New York:
THE President is "to nominate, and, by and with the advice and consent
of the Senate, to appoint ambassadors, other public ministers and
consuls, judges of the Supreme Court, and all other officers of the
United States whose appointments are not otherwise provided for in the
Constitution. But the Congress may by law vest the appointment of such
inferior officers as they think proper, in the President alone, or in
the courts of law, or in the heads of departments. The President shall
have power to fill up all vacancies which may happen during the recess
of the Senate, by granting commissions which shall expire at the end of
their next session."
It has been observed in a former paper, that "the true test of a
good government is its aptitude and tendency to produce a good
administration." If the justness of this observation be admitted, the
mode of appointing the officers of the United States contained in the
foregoing clauses, must, when examined, be allowed to be entitled
to particular commendation. It is not easy to conceive a plan better
calculated than this to promote a judicious choice of men for filling
the offices of the Union; and it will not need proof, that on this point
must essentially depend the character of its administration.
It will be agreed on all hands, that the power of appointment, in
ordinary cases, ought to be modified in one of three ways. It ought
either to be vested in a single man, or in a select assembly of a
moderate number; or in a single man, with the concurrence of such an
assembly. The exercise of it by the people at large will be readily
admitted to be impracticable; as waiving every other consideration,
it would leave them little time to do anything else. When, therefore,
mention is made in the subsequent reasonings of an assembly or body
of men, what is said must be understood to relate to a select body or
assembly, of the description already given. The people collectively,
from their number and from their dispersed situation, cannot be
regulated in their movements by that systematic spirit of cabal and
intrigue, which will be urged as the chief objections to reposing the
power in question in a body of men.
Those who have themselves reflected upon the subject, or who have
attended to the observations made in other parts of these papers, in
relation to the appointment of the President, will, I presume, agree to
the position, that there would always be great probability of having the
place supplied by a man of abilities, at least respectable. Premising
this, I proceed to lay it down as a rule, that one man of discernment is
better fitted to analyze and estimate the peculiar qualities adapted
to particular offices, than a body of men of equal or perhaps even of
superior discernment.
The sole and undivided responsibility of one man will naturally beget a
livelier sense of duty and a more exact regard to reputation. He will,
on this account, feel himself under stronger obligations, and more
interested to investigate with care the qualities requisite to the
stations to be filled, and to prefer with impartiality the persons who
may have the fairest pretensions to them. He will have fewer personal
attachments to gratify, than a body of men who may each be supposed to
have an equal number; and will be so much the less liable to be misled
by the sentiments of friendship and of affection. A single well-directed
man, by a single understanding, cannot be distracted and warped by that
diversity of views, feelings, and interests, which frequently distract
and warp the resolutions of a collective body. There is nothing so apt
to agitate the passions of mankind as personal considerations whether
they relate to ourselves or to others, who are to be the objects of
our choice or preference. Hence, in every exercise of the power of
appointing to offices, by an assembly of men, we must expect to see
a full display of all the private and party likings and dislikes,
partialities and antipathies, attachments and animosities, which are
felt by those who compose the assembly. The choice which may at any time
happen to be made under such circumstances, will of course be the
result either of a victory gained by one party over the other, or of a
compromise between the parties. In either case, the intrinsic merit
of the candidate will be too often out of sight. In the first, the
qualifications best adapted to uniting the suffrages of the party, will
be more considered than those which fit the person for the station.
In the last, the coalition will commonly turn upon some interested
equivalent: "Give us the man we wish for this office, and you shall
have the one you wish for that." This will be the usual condition of the
bargain. And it will rarely happen that the advancement of the public
service will be the primary object either of party victories or of party
negotiations.
The truth of the principles here advanced seems to have been felt by the
most intelligent of those who have found fault with the provision made,
in this respect, by the convention. They contend that the President
ought solely to have been authorized to make the appointments under the
federal government. But it is easy to show, that every advantage to be
expected from such an arrangement would, in substance, be derived from
the power of nomination, which is proposed to be conferred upon him;
while several disadvantages which might attend the absolute power of
appointment in the hands of that officer would be avoided. In the act
of nomination, his judgment alone would be exercised; and as it would
be his sole duty to point out the man who, with the approbation of the
Senate, should fill an office, his responsibility would be as complete
as if he were to make the final appointment. There can, in this view, be
no difference between nominating and appointing. The same motives which
would influence a proper discharge of his duty in one case, would exist
in the other. And as no man could be appointed but on his previous
nomination, every man who might be appointed would be, in fact, his
choice.
But might not his nomination be overruled? I grant it might, yet this
could only be to make place for another nomination by himself. The
person ultimately appointed must be the object of his preference, though
perhaps not in the first degree. It is also not very probable that his
nomination would often be overruled. The Senate could not be tempted, by
the preference they might feel to another, to reject the one proposed;
because they could not assure themselves, that the person they
might wish would be brought forward by a second or by any subsequent
nomination. They could not even be certain, that a future nomination
would present a candidate in any degree more acceptable to them; and as
their dissent might cast a kind of stigma upon the individual rejected,
and might have the appearance of a reflection upon the judgment of the
chief magistrate, it is not likely that their sanction would often
be refused, where there were not special and strong reasons for the
refusal.
To what purpose then require the co-operation of the Senate? I answer,
that the necessity of their concurrence would have a powerful, though,
in general, a silent operation. It would be an excellent check upon a
spirit of favoritism in the President, and would tend greatly to prevent
the appointment of unfit characters from State prejudice, from family
connection, from personal attachment, or from a view to popularity. In
addition to this, it would be an efficacious source of stability in the
administration.
It will readily be comprehended, that a man who had himself the sole
disposition of offices, would be governed much more by his private
inclinations and interests, than when he was bound to submit the
propriety of his choice to the discussion and determination of a
different and independent body, and that body an entire branch of the
legislature. The possibility of rejection would be a strong motive to
care in proposing. The danger to his own reputation, and, in the case
of an elective magistrate, to his political existence, from betraying
a spirit of favoritism, or an unbecoming pursuit of popularity, to the
observation of a body whose opinion would have great weight in forming
that of the public, could not fail to operate as a barrier to the one
and to the other. He would be both ashamed and afraid to bring forward,
for the most distinguished or lucrative stations, candidates who had
no other merit than that of coming from the same State to which he
particularly belonged, or of being in some way or other personally
allied to him, or of possessing the necessary insignificance and pliancy
to render them the obsequious instruments of his pleasure.