of the majority. Mr. Madison moved to insert the word "treaty," after the words "except treaties of peace," allowing such treaties to be made with less difficulty than others, and this was agreed to, but the next day it was defeated. Mr. Dayton and Mr. Wilson moved to strike out the clause requiring two-thirds of the Senate for making treaties, but only Delaware voted in favor of the motion. Mr. Rutledge and Mr. Gerry moved "that no treaty shall be made without the consent of two-thirds of all the members of the Senate, according to the example of the present Congress," but this was defeated by a vote of eight to three. Mr. Sherman then moved "that no treaty shall be made without a majority of the whole number of the Senate.' This motion was also defeated by a vote of five to six. Mr. Madison moved, "that a quorum of the Senate consist of two-thirds of all the members." This was defeated by the same vote. Mr. Williamson and Mr. Gerry then moved, "that no treaty should be made without previous notice to the members and a reasonable time for their attending," but only three States voted for it. The clause in the report of the Committee of Eleven, "that no treaty should be made without the consent of two-thirds of the members present," was then passed, only the States of Pennsylvania, New Jersey and Georgia voting against it.o It would seem that so important a subject ought to have occupied more of the attention and time of the Convention. What was finally agreed upon, viz., conferring the right to make treaties upon the President and Senate, was doubtless a compromise between the element in the Convention which wished to give the power to the President and that which wished to give it to the Senate. The extent of the right to make treaties was not considered by the Convention. It seemed satisfied with lodging the power with the President and Senate. To have conferred the power on a larger number, such as a majority of the whole Congress, would have seriously crippled the utility of the power. It would have lessened 7 Journal, 682, 686. 8 Journal, 687. the element of secrecy so necessary in the formative period of a treaty. On the other hand, requiring á large number of Senators to concur in a treaty secures it from hasty or inconsiderate action before its completion. The language of the Constitution, "by and with the advice and consent of the Senate," has become practically only a consent or concurrence. That body seldom advises the President about the treaty. The great power in the formation of a treaty is the President. It is his will which is put into it. When the treaty is agreed upon by the President and the foreign power with which it is to be made, it is submitted to the Senate. It is then too late for advice, but consent may be given or withheld as the Senate determines. The Senate is not bound-is under no constitutional or other obligation to concur in a treaty in the form and manner in which it is presented to it. On receiving it, the Senate may do one of three thingsconcur in it, amend it, defeat it. The Senate is part of the treaty-making power and cannot be compelled to approve a treaty because it is acceptable to the President. Without the concurrence of the Senate, the treaty fails. This makes the Senate as powerful in the final passage of the treaty as the President is in the beginning. The Senate gets the treaty from the President in the first instance. The President gets it from the Senate in the second instance. Frequently it is a different instrument when it returns to him from what it was when he sent it to the Senate. The Senate may add to the treaty, or take from it, or change its meaning. An instrument purporting to be a treaty which has not been ratified by the Senate is of no binding force. To be effective and operate as a treaty it must have been made with the "advice and consent of the Senate," otherwise it is a nullity.10 Mr. Hamilton has considered and answered the objections against conferring the power of making treaties on the President alone. "An hereditary monarch, though often the oppressor of his people, has personally too much at stake in the government to be in any material 9 Haver v. Yaker, 9 Wallace, 35. 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 but a moderate or slender fortune, and looking forward to a period not very remote when he may 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 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." Answering the argument of those who desired to confer the power of making treaties upon the Senate alone, Mr. Hamilton said: "This 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 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 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 can not 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 respect 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 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 suggestion that two-thirds of all the members of the Senate, in place of two-thirds of the members present, should concur in a treaty, Mr. Hamilton answered in the following way: "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 Con vention 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. 7711 The power being expressly conferred by the Constitution on the President and Senate to make treaties and there being no bounds set to their power, they are without limitation, except they can not violate other provisions of the Constitution, or invade the other departments of the government.12 The right to make a treaty is one of the inherent prerogatives of sovereignty. When a new government is established it acquires certain inherent rights which are recognized by the law of nations. Among these would be the right to raise an army or navy; the right to levy taxes for its support; the right to build forts and arsenals; the right to make laws for its people, and the right to make a treaty with other powers. Foreign territory may be acquired by treaty and the power to acquire territory in that way carries with it the power to govern such territory after it is acquired, and to prescribe the terms upon which the acquiring country will receive its inhabitants and to determine what their status shall be.18 "Under the power given to the President and Senate. to make treaties it must be assumed," said Mr. Justice Clifford, "that the framers of the Constitution intended that the power should extend to all those objects which, in the intercourse of nations, had usually been regarded 11 The Federalist No. 75. 12 Case of Ferreioa dos Santos, 2nd Brock, 493. 13 Downes v. Bidwell, 182 U. S., 279. |