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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 before-band 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.
NEW YORK, MARCH 28, 1788.
THE SAME VIEW CONTINUED, IN RELATION TO THE POWER OF
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 prerogative 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 & 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 discorning oye, in a very favour.
able light, I shall here content myself with offering only somo 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 heretofore given, of the true sense of the rule upon which that objection is founded; and shall take it for grantod, as an inference from them, that the union of the executive with the sonate, 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. 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 defence, 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 por to the executive. The qualities elsewhore detailed, as indispensable in the management of foreign negociations, 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, picud 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 tho entire power of making troaties, 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 peoplo, bas personally too much at stake in the government, to be in any material danger of being corrupted by foreign powers : But that a man raised from the station of a private citizen to the rank of chief magistrate, possessod of but a moderato or slender fortune, and looking forward to a period not very remoto, when he may probably be obliged to return to the station from which he was taken, might sometimes be under temptations to sacrifice duty to interest, which it would require superlative virtue to withstand. An avaricious man might be tempted to betray the interests of the state for 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 deli. cate 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 treatios to the sonate alone, would have been to relinquish the benefits of the consti. tutional agency of the president in the conduct of foreign negociations. It is true, that the senato would, in that caso, 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 extent with the constitutional representative 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 peoplo 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 senato, 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 thoir 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, will apply with conclusive forco 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 gonius 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 & solid objection. The greater frequoncy of the calls upon the houso of ropresontatives, and the greator longth of timo which it would often be necossary to keep them together when convened, to obtain their sanction in the progressive stages of a