exigencies, without impairing its efficacy, or defeating its purposes. The constitution has, therefore, made it general and unqualified. This very circumstance, however, renders it highly important, that it should be delegated 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. With such views, the question was naturally presented in the convention, to what body shall it be delegated? It might be delegated to congress generally, as it was under the confederation, exclusive of the president, or in conjunction with him. It might be delegated to either branch of the legislature, exclusive of, or in conjunction with him. Or it might be exclusively delegated to the president.

§ 779. In the formation of treaties, secrecy and immediate despatch are generally requisite, and sometimes absolutely indispensable. Intelligence may often be obtained, and measures matured in secrecy, which could never be done, unless in the faith and confidence of profound secrecy. No man at all acquainted with diplomacy, but must have felt, that the success of negotiations as often depends upon their being unknown by the public, as upon their justice or their policy. Men will assume responsibility in private, and communicate information, and express opinions, which they would feel the greatest repugnance publicly to avow; and measures may be defeated by the intrigues and management of foreign powers, if they suspect them to be in progress, and understand their precise nature and extent. In this view the executive department is a far better depositary of the power, than congress would be. The delays incident to a large

assembly; the differences of opinion; the time consumed in debate; and the utter impossibility of secrecy, all combine to render them unfitted for the purposes of diplomacy. And our own experience during the confederation abundantly demonstrated all the evils, which the theory would lead us to expect. Besides; there are tides in national affairs, as well as in the affairs of private life. To discern and profit by them is the part of true political wisdom; and the loss of a week, or even of a day, may sometimes change the whole aspect of affairs, and render negotiations wholly nugatory, or indecisive. The loss of a battle, the death of a prince, the removal of a minister, the pressure or removal of fiscal embarrassments at the moment, and other circumstances, may change the whole posture of affairs, and ensure success, or defeat the best concerted project. The executive, having a constant eye upon foreign affairs, can promptly meet, and even anticipate such emergencies, and avail himself of all the advantages accruing from them; while a large assembly would be coldly deliberating on the chances of success, and the policy of opening negotiations. It is manifest, then, that congress would not be a suitable depositary of the power.

§ 780. The same difficulties would occur from confiding it exclusively to either branch of congress. Each is too numerous for prompt and immediate action, and secrecy. The matters in negotiations, which usually require these qualities in the highest degree, are the preparatory and auxiliary measures; and which are to be seized upon, as it were, in an instant. The president could easily arrange them. But the house, or the senate, if in session, could not act, until after great delays; and in the recess could not act at all. To

have entrusted the power to either 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 branch so entrusted might have the option to employ the president in that capacity; but they would also have the option of refraining from it; and it cannot be disguised, that pique, or cabal, or personal or political hostility, might induce them to keep their pursuits at a distance from his inspection and participation. Nor could it be expected, that the president, as a mere ministerial agent of such branch, would enjoy the confidence and respect of foreign powers to the same extent, as he would, as the constitutional representative of the nation itself; and his interposition would of course have less efficacy and weight.

§ 781. On the other hand, considering the delicacy and extent of the power, it is too much to expect, that a free people would confide to a single magistrate, however respectable, the sole authority to act conclusively, as well as exclusively, upon the subject of treaties. In England, the power to make treaties is exclusively vested in the crown. But however proper it may be in a monarchy, there is no American statesman, but must feel, that such a prerogative in an American president would be inexpedient and dangerous. It would be inconsistent with that wholesome jealousy, which all republics ought to cherish of all depositaries of power; and which, experience teaches us, is the best security against the abuse of it. The check, which acts upon the mind from the consideration, that what is done is but preliminary, and requires the assent of other independent minds to give it a legal conclusiveness, is a restraint, which awakens caution, and compels to deliberation.

§ 782. The plan of the constitution is happily adapted to attain all just objects in relation to foreign negotiations. While it confides the power to the executive department, it guards it from serious abuse by placing it under the ultimate superintendence of a select body of high character and high responsibility. It is indeed clear to a demonstration, that this joint possession of the power affords a greater security for its just exercise, than the separate possession of it by either. The president is the immediate author and finisher of all treaties; and all the advantages, which can be derived from talents, information, integrity, and deliberate investigation on the one hand, and from secrecy and despatch on the other, are thus combined in the system. But no treaty, so formed, becomes binding upon the country, unless it receives the deliberate assent of two thirds of the senate. In that body all the states are equally represented; and, from the nature of the appointment and duration of the office, it may fairly be presumed at all times to contain a very large portion of talents, experience, political wisdom, and sincere patriotism, a spirit of liberality, and a deep devotion to all the substantial interests of the country. The constitutional check of requiring two thirds to confirm a treaty is, of itself, a sufficient guaranty against any wanton sacrifice of private rights, or any betrayal of public privileges. To suppose otherwise would be to suppose, that a representative republican government was a mere phantom; that the state legislatures were incapable, or unwilling to choose senators possessing due qualifications; and that the people would voluntarily confide power to those, who were ready to promote their ruin, and endanger, or destroy their liberties. Without supposing a case of utter indifference, or utter

corruption in the people, it would be impossible, that the senate should be so constituted at any time, as that the honour and interests of the country would not be safe in their hands. When such an indifference, or corruption shall have arrived, it will be in vain to prescribe any remedy; for the constitution will have crumbled into ruins, or have become a mere shadow, about which it would be absurd to disquiet ourselves.

§ 783. Some doubts appear to have been entertained in the early stages of the government, as to the correct exposition of the constitution in regard to the agency of the senate in the formation of treaties. The question was, whether the agency of the senate was admissible previous to the negotiation, so as to advise on the instructions to be given to the ministers; or was limited to the exercise of the power of advice and consent, after the treaty was formed; or whether the president possessed an option to adopt one mode, or the other, as his judgment might direct. The practical exposition assumed on the first occasion, which seems to have occurred in President Washington's administration, was, that the option belonged to the executive to adopt either mode, and the senate might advise before, as well as after, the formation of a treaty. Since that period, the senate have been rarely, if ever, consulted, until after a treaty has been completed, and laid before them for ratification. When so laid before the senate, that body is in the habit of deliberating upon it, as, indeed, it does on all executive business, in secret, and with closed doors. The senate may wholly reject the treaty, or advise and consent to a ratification of part of the articles, rejecting others, or recommend additional or explanatory articles. In the event of a partial ratification, the treaty does not