oppose, and from which no apprehensions are entertained. The powers relating to war and peace, armies and fleets, treaties and finance, with the other more considerable powers, are all vested in the existing Congress by the articles of Confederation. The proposed change does not enlarge these powers; it only substitutes a more effectual mode of administering them."

§ 244. The Federalist, No. LXIV; importance of treatymaking power.-In No. LXIV, after quoting the section giving power to the President to make treaties by and with the consent of the Senate, provided that the requisite number concur, the author says: "The power of making treaties is an important one, especially as it relates to war, peace, and commerce; and it should not be delegated but 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. The convention appears to have been attentive to both these points: they have directed the President to be chosen by select bodies of electors, to be deputed by the people for that express purpose; and they have committed the appointment of senators to the State legislatures. This mode has, in such cases, vastly the advantage of elections by the people in their collective capacity, where the activity of party zeal, taking advantage of the supineness, the ignorance, and the hopes and fears of the unwary and interested, often places men in office by the votes of a small proportion of the electors."

$245. The Federalist, No. LXIV; same subject continued. The author again says, in the same number: "It was wise, therefore, in the convention to provide, not only that the power of making treaties should be committed to able and honest men, but also that they should continue in place a sufficient time to become perfectly acquainted with our national concerns, and to form and introduce a system. for the management of them." Continuing, he says:

"It seldom happens in the negotiation of treaties, of whatever nature, but that perfect secrecy and immediate despatch § 244. Packet, Friday, March 7, 1788; 1 Published in the New York credited by Lodge to Jay.

are sometimes requisite. There are cases where the most useful intelligence may be obtained, if the persons possessing it can be relieved from apprehensions of discovery. Those apprehensions will operate on those persons whether they are actuated by mercenary or friendly motives; and there doubtless are many of both descriptions, who would rely on the secrecy of the President, but who would not confide in that of the Senate, and still less in that of a large popular Assembly. The convention have done well, therefore, in so disposing of the power of making treaties, that although the President must, in forming them, act by the advice and consent of the Senate, yet he will be able to manage the business of intelligence in such a manner as prudence may suggest."

After showing the wisdom of confiding the treaty-making power to the Executive, and to the Senate, that being the sınaller body of Congress and therefore better fitted for the purpose on account of the secrecy and despatch requisite in the negotiation of treaties, the Federalist answers those who had objected to the provision making treaties the supreme law of the land by saying, in the same number:1

"Others, though content that treaties should be made in the mode proposed, are averse to their being the supreme laws of the land. They insist, and profess to believe, that treaties like acts of assembly, should be repealable at pleasure. This idea seems to be new and peculiar to this country, but new errors, as well as new truths, often appear. These gentlemen would do well to reflect that a treaty is only another name for a bargain, and that it would be impossible to find a nation who would make any bargain with us, which should be binding on them absolutely, but on us only so long and so far as we may think proper to be bound by it. They who make laws may, without doubt, amend or repeal them; and it will not be disputed that they who make treaties may alter or cancel them; but still let us not forget that treaties are made, not by only one of the contracting parties, but by both; and consequently, that as the consent of both was essential to their formation at first, so must it ever after§ 245.

1No. LXIV.

wards be to alter or cancel them. The proposed Constitution, therefore, has not in the least extended the obligation of treaties. They are just as binding, and just as far beyond the lawful reach of legislative acts now, as they will be at any future period, or under any form of government." It must be noted, however, that the views expressed by the Federalist in this number have not always been acquiesced in, or followed by, the Supreme Court. This will be referred to at length in a subsequent chapter on the relative effects of treaty stipulations and United States statutes.3

§ 246. The Federalist, No. LXIX: the treaty-making power of the United States compared with that of Great Britain. In No. LXIX1 the treaty-making power as vested in the President and Senate is compared to the treaty-making power as exercised by the king of Great Britain and the reasons for the vesting the treaty-making power, in its widest scope in the Executive, are given as follows: "The President is to have power, with the advice and consent of the Senate, to make treaties, provided two thirds of the senators 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, until 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 utmost plenitude; and that the compacts entered into by the royal authority have the most complete legal validity and perfection, independent of any other sanction. § 246.

2 For views of John Jay on the treaty-making power of the confederation, see his letter to Congress referred to at length in note 4 under § 157, p. 268, et seq., ante.

* See note 3 under § 237, p. 378, ante, and § 313, p. 449, post.

1 Published in the New York Packet, Friday, March 14, 1788, credited by Lodge to Hamilton.

2 The Federalist here cites Blackstone's Commentaries, vol. I, p. 257.

The Parliament, it is true, is sometimes seen employing itself in altering the existing laws to conform them to the stipu lations in a new treaty; and this may have possibly given birth to the imagination, that its coöperation was necessary to the obligatory efficacy of the treaty. But this parliamentary interposition proceeds from a different cause: from the necessity of adjusting a most artificial and intricate system of revenue and commercial laws, to the changes made in them by the operation of the treaty; and of adapting new. provisions and precautions to the new state of things, to keep the machine from running into disorder. In this respect, therefore, there is no comparison between the intended power of the President and the actual power of the British sovereign. The one can perform alone what the other can only do with the concurrence of a branch of the legislature. It must be admitted, that, in this instance, the power of the federal Executive would exceed that of any State Executive. But this arises naturally from (the exclusive possession by the Union of that part of) the sovereign power which relates to treaties. If the Confederacy were to be dissolved, it would become a question, whether the Executives of the several States were not solely invested with that delicate and important prerogative."

3

$247. The Federalist, No. LXXV; advantages of the United States plan; treaties as contracts.-In Number LXXV1 the Federalist again reverts to the provision that 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.'" In support of this provision he says that although it has been assailed on different grounds with no small degree of vehemency, he does not scruple to declare his firm persuasion that it is one of the best digested and most unexceptionable parts of the plan. He discusses and shows the advantages of the system as compared with the alternative methods of placing the power in the hands of the President alone, or of the Senate alone, or of allowing the House of

The words in parenthesis appear in Dawson's edition of the Federalist, but are omitted in Lodge's edition.

§ 247.

1 Published in the Independent Journal (date not given); credited by Lodge to Hamilton.

Representatives to participate therein. He demonstrates that requiring the concurrence of two thirds of the whole Senate instead of those present, would have proved an embarrassment rather than a benefit.

In speaking of treaties in this number, the Federalist takes the ground that treaty-making is not either strictly executive or legislative; in this respect he says: "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."

As stated in a previous section, we shall have occasion to refer again to these views of the Federalist in a subsequent chapter.2

§ 248. The Federalist, No. LXXX; treaty-making power of National Government necessary for peace of Union.In Number LXXX1 the necessity of submitting the matters involving the peace of the Union to the national judiciary is stated as follows: "The fourth point rests on this plain proposition, that the peace of the WHOLE ought not to be left at the disposal of a PART. The Union will undoubtedly be answerable to foreign powers for the conduct of its members. And the responsibility for an injury ought ever to be accom panied with the faculty of preventing it. As the denial or perversion of justice by the sentences of courts, as well as in any other manner, is with reason classed among the just causes of war, it will follow that the federal judiciary ought to have cognizance of all causes in which the citizens of other countries are concerned. This is not less essential to the preservation of the public faith, than to the security of the

2See § 245, p. 381, ante, and § 313, as being taken from McLean's p. 449, post edition of 1788 and credited to Hamilton.

§ 248.

1In Lodge's edition this is stated