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the negotiators a law was necessary; but it stipulates in positive terms for their repeal without consulting or regarding us. Mr. C. here concluded this part of the discussion, by stating that it appeared to him, from the whole complexion of the case, that the bill before the house was mere form and not supposed to be necessary to the validity of the treaty. It would be proper, however, he observed, to reply to the arguments which have been urged on the general nature of the treatymaking power, and as it was a subject of great importance, he solicited the attentive hearing of the house. It is not denied, he believed, that the President with the concurrence of two thirds of the Senate have a right to make commercial treaties; it is not asserted that this treaty is couched in such general terms as to require a law to carry the details into execution. Why then is this bill necessary? Because, say gentlemen, that the treaty of itself, without the aid of this bill, cannot exempt British tonnage and goods imported in their bottoms, from the operation of the law, laying additional duties on foreign tonnage and goods imported in foreign vessels; or, giving the question a more general form, because a treaty cannot annul a law. The gentleman from Virginia, (Mr. Barbour,) who argued this point very distinctly, though not satisfactorily, took as his general position, that to repeal a law is a legislative act, and can only be done by law; that in the distribution of the legislative and treaty-making power, the right to repeal a law fell exclusively under the former. How does this comport with the admission immediately made by him, that the treaty of peace repealed the act declaring war? If he admits the fact in a single case, what becomes of his exclusive legislative right? He indeed felt that his rule failed him, and in explanation assumed a position entirely new; for he admitted, that when the treaty did that which was not authorized to be done by law, it did not require the sanction of Congress, and might in its operation repeal a law inconsistent with it. He said, Congress is not authorized to make peace; and for this reason, a treaty of peace repeals the act declaring war. In this position, he understood his colleague substantially to concur. He hoped to make it appear that, in taking this ground, they have both yielded the point in discussion. He would establish, he trusted, to the satisfaction of the house, that the treaty-making power, when it was legitimately exercised, always did that which could not be done by law; and that the reasons advanced to pve that the treaty of peace repealed the act making war, so far from , og peculiar to that case, apply to all treaties. They do not form an

exception, out in fact constitute the rule. Why then, he asked, cannot Congress make peace? They have the power to declare war. All acknowledge this power. Peace and war are the opposites. They are the positive and negative terms of the same proposition; and what rule of construction more clear, than that when a power is given to do an act, the power is also given to repeal it? By what right do you repeal taxes, reduce your army, lay up your navy, or repeal any law, but by the force of this plain rule of construction? Why cannot Congress, then, repeal the act declaring war? He acknowledged with the gentleman, they cannot consistently with reason. The solution of this question explained the whole difficulty. The reason is plain: one power may make war; it requires two to make peace. It is a state of mutual amity succeeding mutual hostility; it is a state that cannot be created but with the consent of both parties. It required a contract or a treaty between the nations at war. Is this peculiar to a treaty of peace? No, it is common to all treaties. It arises out of their nature, and not from any accidental circumstance attaching itself to a particular class. It is no more or less than that Congress cannot make a contract with a foreign nation. Let us apply it to a treaty of commerce, to this very case. Can Congress do what this treaty has done? It has repealed the discriminating duties between this country and England. Either could by law repeal its own. But by law they could go no farther; and for the same reason that peace cannot be made by law. Whenever, then, an ordinary subject of legislation can only be regulated by contract, it passes from the sphere of the ordinary power of making laws, and attaches itself to that of making treaties, wherever it is lodged. All acknowledge the truth of this conclusion, where the subject on which the treaty operates is not expressly given to Congress. But in other cases, they consider the two powers as concurrent; and conclude from the nature of such powers that such treaties must be confirmed by law. Will they acknowledge the opposite, that laws on such subjects must be confirmed by treaties? And if, as they state, a law can repeal a treaty when concurrent, why not a treaty a law? Into such absurdities do false doctrines lead. The truth is, the legislative and treaty-making power are never in the strict sense concurrent. They both may have the same subject, as in this case commerce; but they discharge functions as different in relation to it in their nature, as their subject is alike. When we speak of concurrent powers, we mean when both can do the same thing; but he contended, that when the two powers under discus

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sion were confined to their proper sphere, not only the law could not do what could be done by treaty, but the reverse was true; that is, they Lever are nor can be concurrent powers. It is only when we reason on this subject that we mistake; in all other cases the common sense of the house and country decide correctly. It is proposed to establish some regulation of commerce; we immediately inquire, does it depend on our will; can we make the desired regulation without the concur rence of any foreign power; if so, it belongs to Congress, ard would feel it to be absurd to attempt to effect it by treaty. On the contrary, does it require the consent of a foreign power? Is it proposed to grant a favor for a favor, to repeal discriminating duties on both sides? It is equally felt to belong to the treaty power; and he would be thought insane who would propose to abolish the discriminating duties in any case, by an act of the American Congress. It is calculated, he felt, almost to insult the good sense of the house, to dwell on a point apparently so clear. What then would he infer from what had been advanced? That according to the argument of gentlemen, treaties, producing a state of things inconsistent with the provisions of an existing law, annul such provisions. But as he did not agree with them in the view which they took, he would here present his own for consideration. Why then has a treaty the force which he attributes to it? Because it is an act in its own nature paramount to laws made by the common legislative powers of the country. It is in fact a law, and something more, a law established by contract between independent nations. To analogize it to private life, law has the same relations to treaty, as the resolution taken by an individual to his contract. An individual may make the most deliberate promise-he may swear it in the most solemn form, that he would not sell his house or any other property he may have; yet, if he would afterwards sell, the sale would be valid in law; he would not be admitted in a court of justice to plead his oath against his contract. Take a case of government in its most simple form, where it was purely despotic, that is, all power lodged in the hands of a single individual. Would not his treaties repeal inconsistent edicts? Let us now ascend from the instances cited, to illustrate the nature of the two powers, to the principle on which the paramount character of a treaty rests. A treaty always affects the interests of two; a law only that of a single nation. It is an established principle of politics and morality, that the interest of the many is paramount to that of the few. In fact, it is a principle so radical, that without it no system of

morality, no rational scheme of government could exist. It is for this reason, that contracts or that treaties, which are only the contracts of independent nations, or to express both in two words, that plighted faith, has in all ages and nations been considered so solemn. But it is said, in opposition to this position, that a subsequent law can repeal a treaty; and to this proposition, he understood that the member from N. C. (Mr. Gaston) assented. Strictly speaking, he denied the fact. He knew that a law might assume the appearance of repealing a treaty; but he insisted it was only in appearance, and that, in point of fact, it was not a repeal. Whenever a law was proposed, declaring a treaty void, he considered that the house acted not as a legislative body, but judicially. He would illustrate his ideas. If the house is a moral body, that is, if it is governed by reason and virtue, which it must always be presumed to be, the only question that ever could occupy its attention, whenever a treaty is to be declared void, is whether, under all of the circumstances of the case, the treaty is not already destroyed, by being violated by the nation with whom it is male, or by the existence of some other circumstance, if other there can be. The house determines this question, Is the country any longer bound by the treaty? Has it not ceased to exist? The nation passes in judgment on its own contract; and this, from the necessity of the case, as it admits no superior power to which it can refer for decision. If any other consideration moves the house to repeal a treaty, it can be considered only in the light of a violation of a contract acknowledged to be binding on the country. A nation may, it is true, violate its contract; they may even do this under the form of law; but he was not considering what might be done, but what might be rightfully done. It is not a question of power, but of right. Why are not these positions, in themselves so clear, universally assented to? Gentlemen are alarmed at imaginary consequences. They argue not as if seeking for the meaning of the constitution; but as if deliberating on the subject of making one; not as members of the legislature, and acting under a constitution already established, but as that of a convention about to frame one. For his part, he had always regarded the constitution as a work of great wisdom, and, being the instrument under which we existed as a body, it was our duty to bow to its enactments, whatever they may be, with submission. We ought scarcely to indulge a wish that its provisions should be different from what they in fact are. The consequences, however, which appear to work with so much terror on the minds of the

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gentlemen, he considered to be without any just foundation. The treatymaking power has many and powerful limits; and it will be found, when he came to discuss what those limits are, that it cannot destroy the constitution, our personal liberty, involve us, without the assent of this house, in war, or grant away our money. The limits he proposed to this power, are not the same, it is true; but they appear to him much more rational and powerful than those which were supposed to present effectual guards to its abuse. Let us now consider what they are. The grant of the power to maketreaties is couched in the most general terms. The words of the constitution are, that the President shall have power, by and with the advice and consent of the Senate, to make treaties, provided two thirds of the Senators present concur. sequent part of the constitution, treaties are declared to be the supreme law of the land. Whatever limits are imposed on those general terms ought to be the result of the sound ecustruction of the instrument. There appeared to him but two restrictions on its exercise; the one derived from the nature of our government, and the other from that of the power itself. Most certainly all grants of power under the constitution must be controlled by that instrument; for, having their existence from it, they must of necessity assume that form which the constitution has imposed. This is acknowledged to be true of the legislative power, and it is doubtless equally so of the power to make treaties. The limits of the former are exactly marked; it was necessary to prevent collision with similar co-existing state powers. This country is divided into many distinct sovereignties. Exact enumeration here is necessary to prevent the most dangerous consequences. The enumeration of legislative powers in the constitution has relation then not to the treaty power, but to the powers of the state.

In our relation to the rest of the world the case is reversed. Here the States disappear. Divided within, we present the exterior of undivided sovereignty. The wisdom of the constitution appears conspicuous. When enumeration was needed, there we find the powers enumerated and exactly defined; when not, we do not find what would be vain and pernicious. Whatever then concerns our foreign relations; whatever requires the consent of another nation, belongs to the treaty power; can only be regulated by it; and it is competent to regulate all such subjects; provided, and here are its true limits, such regulations are not inconsistent with the constitution. If so they are void. No treaty can alter the fabric of our government, nor can it do that

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