ated by law; and in the second place, that it would
generally be impolitic beforehand 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.

PUBLIUS

FEDERALIST No. 75

The Treaty-Making Power of the Executive

For the Independent Journal. Wednesday, March 26, 1788

HAMILTON

To the People of the State of New York:

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 power 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 a
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 discerning eye, in a very favorable
light, I shall here content myself with offering only some 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 already given in other places, of the true sense of
the rule upon which that objection is founded; and shall take it for
granted, as an inference from them, that the union of the Executive with
the Senate, 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