cases of this sort. The senators from the longer duration of their office will have great opportunities of extending their political information, and of rendering their experience more and more beneficial to their country. The members are slowly changed; so, that the body will at all times, from its very organization, comprehend a large majority of persons, who have been engaged for a considerable time in public duties, and foreign affairs. If, in addition to all these reasons, it is considered, that in the senate all the states are equally represented, and in the house very unequally, there can be no reasonable doubt, that the senate is in all respects a more competent, and more suitable depositary of the power, than the house, either with, or without the co-operation of the executive. And most of the reasoning applies with equal force to any participation by the house in the treaty-making functions. It would add an unwieldly machinery to all foreign operations; and retard, if not wholly prevent, the beneficial purposes of the power. Yet such a scheme has not been without warm advocates. And it has been thought an anomaly, that, while the power to make war was confided to both branches of congress, the power to make peace was within the reach of one, with the co-operation of the president.2

§ 1512. But there will be found no inconsistency, or inconvenience in this diversity of power. Considering the vast expenditures and calamities, with which war is attended, there is certainly the strongest ground for

1 The Federalist, No. 64, 75.- In the convention a proposition was made to add the house to the senate, in advising and consenting to treaties. But it was rejected by the vote of ten states against one. Journ. of Convention, 339, 340.

21 Tuck. Black. Comm. App. 338, 339.

confiding it to the collected wisdom of the national councils. It requires one party only to declare war; but it requires the co-operation and consent of both belligerents to make peace. No negotiations are necessary in the former case; in the latter, they are indispensable. Every reason, therefore, for entrusting the treaty-making power to the president and senate in common negotiations, applies a fortiori to a treaty of peace. Indeed, peace is so important to the welfare of a republic, and so suited to all its truest interests, as well as to its liberties, that it can scarcely be made too facile. While, on the other hand, war is at all times so great an evil, that it can scarcely be made too difficult. The power to make peace can never be unsafe for the nation in the hands of the president and two thirds of the senate. The power to prevent it, may not be without hazard in the hands of the house of representatives, who may be too much under the control of popular excitement, or legislative rivalry, to act at all times with the same degree of impartiality and caution. In the convention, a proposition to except treaties of peace from the treaty-making power was, at one time, inserted, but was afterwards. deliberately abandoned.1

arrange

§ 1513. In regard to the objection, that the ment is a violation of the fundamental rule, that the legislative and executive departments ought to be kept separate; it might be sufficient to advert to the considerations stated in another place, which show, that the true sense of the rule does not require a total separation. But, in truth, the nature of the power of making treaties indicates a peculiar propriety in the Union of the executive and the senate in the exercise of it.

2

1 Journ. of Convention, 226, 325, 326, 341, 342.

2 See Vol. II. § 524, et seq.

Though some writers on government place this power in the class of executive authorities; yet, it is an arbitrary classification; and, if attention is given to its operation, it will be found to partake more of the legislative, than of the exccutive character. The essence of legislation is to prescribe laws, or regulations for society; while the execution of those laws and regulations, and the employment of the common strength, either for that purpose, or for the common defence, seem to comprize 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 subsisting laws, nor to the enactment of new ones; and still less does it relate to the exertion of the common strength. Its objects are contracts with foreign nations, which have the force of law with us; but, as to the foreign sovereigns, have only the obligation of good faith. Treaties are not rules prescribed by the sovereign to his subjects; but agreements between sovereign and sovereign. The treaty-making power, therefore, seems to form a distinct department, and to belong, properly, neither to the legislature, nor the executive, though it may be said to partake of qualities common to each. The president, from his unity, promptitude, and facility of action, is peculiarly well adapted to carry on the initiative processes; while the senate, representing all the states, and engaged in legislating for the interests of the whole country, is equally well fitted to be entrusted with the power of ultimate ratification.1

§ 1514. The other objection, which would require a concurrence of two thirds of all the members of the

1 The Federalist, No. 75.

senate, and not merely of two thirds of all present, is not better founded. All provisions, which require more, than a majority of any body to its resolutions, have (as has been already intimated) 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 ought never to be lost sight of; and very strong reasons ought to exist to justify any departure from the ordinary rule, that the majority ought to govern. The constitution has, on this point, gone as far in the endeavour to secure the advantage of numbers in the formation of treaties, as can be reconciled either with the activity of the public councils, or with a reasonable regard to the sense of the major part of the community. If two thirds of the whole number of members had been required, it would, in many cases, from a non-attendance of a part, amount in practice to a necessity almost of unanimity. The history of every political establishment, in which such a principle has prevailed, is a history of impotence, perplexity, and disorder. Proofs of this position may be easily adduced from the examples of the Roman tribuneship, the Polish diet, and the states general of the Netherlands, and even from our own experience under the confederation. Under the latter instrument the concurrence of nine states was necessary, not only to making treaties, but to many other acts of a less important character; and measures were often defeated by the non-attendance of members, sometimes by design, and sometimes by accident. It is hardly possible, that a treaty could be ratified by surprise, or tak

1 2 Elliot's Debates, 367 to 379.

2 The Federalist, No. 75; Id. No. 22. 3 Ibid. and 1 Elliot's Debates, 44, 45.

ing advantage of the accidental absence of a few members; and certainly the motive to punctuality in attendance will be greatly increased by making such ratification to depend upon the numbers present.1

§ 1515. The Federalist has taken notice of the difference between the treaty-making power in England, and that in America in the following terms: "The president is to have power, with the advice and consent of the senate, to make treaties, provided two thirds of the members present concur. The king of Great Britain is the sole and absolute representative of the nation, in all foreign transactions. He can, of his own accord, make treaties of peace, commerce, alliance, and of every other description. It has been insinuated, that his authority, in this respect, is not conclusive; and that his conventions with foreign powers are subject to the revision, and stand in need of the ratification of parliament. But, I believe, this doctrine was never heard of, till it was broached upon the present occasion. Every jurist of that kingdom, and every other man acquainted with its constitution, knows, as an established fact, that the prerogative of making treaties exists in the crown in its utmost plenitude; and that the compacts entered into by the royal authority have the most complete legal validity and perfection, independ

In the con

1 The Federalist, No. 75, 22; 2 Elliot's Debates, 368. vention a proposition to require the assent of two thirds of all the members of the senate was rejected by the vote of eight states against three. Another to require, that no treaty shall be made, unless two thirds of the whole number of senators were present, was also rejected by the vote of six states against five. Another, to require a majority of all the members of the senate to make a treaty, was also rejected by the vote of six states against five. Another, to require, that all the members should be summoned, and have time to attend, shared a like fate, by the vote of eight states against three. Journal of Convention, 343,