On the Commercial Treaty with Great Britain.
Mr. HOPKINSON. In the nature of things, there cannot exist, at the same time, under the same authority, two contradictory, inconsistent laws, and rules of action. One or the other must give way; both cannot be obeyed; and if, in this case, this [commercial] treaty has no constitutional supremacy over an ordinary act of legislation, it, at least, has the admitted advantages of being earlier in point of time, of being the last constitutional expression of the will of the nation on this subject. It is worthy of remark, that the general power of legislation is given to Congress in one part of the Constitution; the special power of making treaties, to the President and Senate, in another part; and then the acts of both, if done constitutionally, are declared, in the same sentence, in another part of the Constitution, to be the supreme law of the land, and placed upon the same footing of authority.
Mr. CALHOUN. From the whole complexion of the case, said Mr. C., 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 treaty-making 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, has 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How does this comport with the admission immediately made by him, that the treaty of peace repealed the act declaring war?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 stood his colleague substantially to concur. He hoped to make it appeal that, in taking this ground, they have both yielded to 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 prove that the treaty of peace repealed the act making war, so far from being peculiar to that case, apply to all treaties. They do not form an exception, but 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 opposite. 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 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 incidental 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 law, and attaches itself to that of making treaties, wherever it is lodged.
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The treaty-making 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, or 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 appeared to him much more rational and powerful than those which were supposed to present effectual guards for its abuse. Let us now consider what they are.
The grant of the power to make treaties 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.
In a subsequent part of the Constitution, treaties are declared to be the supreme law of the land. Whatever limits are imposed on these general terms, ought to be the result of the sound construction 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 the instrument; for, having their existence from it, they must of necessity assume that form which the Constitution has imposed. This is acknowledged to be the true source 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 coëxisting state powers. This country within is divided into two 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-making power, bat to the powers of the states. In our relation to the rest of the world, the case is reversed. Here the states disappear. Divided within, we present, without, 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 to attempt. 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 which the Constitution has expressly forbidden to be done; nor can it do that differently which is directed to be done in a given mode, and all other modes prohibited.
For instance, the Constitution says no money "shall be drawn out of the treasury, but by an appropriation made by law." Of course no subsidy can be granted without an act of law; and a treaty of alliance could not involve the country in war without the consent of this house. Besides these constitutional limits, the treaty power, like all others, has other limits, derived from its object and nature. It has for its object contracts with foreign nations, as the powers of Congress have for their object whatever can be done in relation to the powers delegated to it without the consent of foreign nations. Each, in its proper sphere, operates with genial influence; but when they become erratic, then they are portentous and dangerous A treaty never can legitimately do that which can be done by law; and the converse is also true. Suppose the discriminating duties repealed on both sides by law; yet what is effected by this treaty would not even then be done: the plighted faith would be wanting; either side might repeal its law, without a breach of contract. It appeared to him that gentlemen are too much influenced on this subject by the example of Great Britain. Instead of looking to the nature of our government, they have been swayed in their opinion by the practice of that government, to which we are but too much in the habit of looking for precedents.
Mr. TUCKER. It is contended by the gentleman from South Carolina (Mr. Calhoun) that a treaty is superior to the law, because it is a contract between one nation and another power. I am ready to admit, Mr. Speaker, the ingenuity of the gentleman in drawing this distinction. It is what may well be expected from his ingenious and active mind. But I think it will appear that it is more ingenious than solid, more true than applicable to the subject.
I admit that, where a contract has been entered into and completed by all the necessary powers under our Constitution, it is binding upon the nation. But the question still recurs. When is it complete? In the case of a treaty containing stipulations merely executive, it is complete when the ratifications are exchanged. In the case of a treaty which requires a legislative 2iCt to give it operation, we contend that the legislative sanction must be given before it is complete. Until then it is not a binding contract, and the rights of the third party (the foreign power) do not exist. Is it not the petitio principii, or—if the gentleman will permit me to use the vulgar translation—is it not begging the question, to contend that before the legislative sanction the contract is binding, when the very question before us is, whether that sanction be necessary to make it binding?
Mr. PINCKNEY. I lay it down as an incontrovertible truth, that the Constitution has assumed, (and indeed how could it do otherwise?) that the government of the United States might and would have occasion, like the other governments of the civilized world, to enter into treaties with foreign powers, upon the various subjects involved in their mutual relations; and further, that it might be and was proper to designate the department of the government in which the capacity to make such treaties should be lodged. It has said, accordingly, that the President, with the concurrence of the Senate, shall possess this part of the national sovereignty. It has, furthermore, given to the same magistrate, with the same concurrence, the exclusive creation and control of the whole machinery of diplomacy. He only, with the approbation of the Senate, can appoint a negotiator, or take any step towards a negotiation. The Constitution does not, in any part of it, even intimate that any other department shall possess either a constant or an occasional right to interpose in the preparation of any treaty, or in the final perfection of it. The President and the Senate are explicitly pointed out as the sole actors in that sort of transaction.
The prescribed concurrence of the Senate—and that, too, by a majority greater than the ordinary legislative majority—plainly excludes the necessity of congressional concurrence. If the consent of Congress to any treaty had been intended, the Constitution would not have been guilty of the absurdity of putting a treaty for ratification to the President and Senate exclusively, and again to the same President and Senate as portions of the legislature. It would have submitted the whole matter at once to Congress; and the more especially as the ratification of a treaty by the Senate, as a branch of the legislature, may be by a smaller number than a ratification of it by the same body as a branch of the executive government. If the ratification of any treaty by the President, with the consent of the Senate, must be followed by a legislative ratification, it is a mere nonentity. It is good for all purposes, or for none. And if it be nothing, in effect, it is a mockery by which nobody would be bound. The President and Senate would not themselves be bound by it; and the ratification would at last depend, not upon the will of the President and two thirds of the Senate, but upon the will of a bare majority of the two branches of the legislature, subject to the qualified legislative control of the President.
Upon the power of the President and Senate, therefore, there can be no doubt. The only question is as to the extent of it; or, in other words, as to the subject upon which it may be exerted. The effect of the power, when exerted within its lawful sphere, is beyond the reach of controversy. The Constitution has declared that whatsoever amounts to a treaty made under the authority of the United States, shall immediately be supreme law. It has contradistinguished a treaty as law, from an act of Congress as law. It has erected treaties, so contradistinguished, into a binding judicial rule. It has given them to our courts of justice, in defining the jurisdiction, as a portion of the lex terræ, which they are to interpret and enforce. In a word, it has communicated to them, if ratified by the department which it has specially provided for the making of them, the rank of law—or it has spoken without meaning. And if it has elevated them to that rank, it is idle to attempt to raise them to it by ordinary legislation.
It is clear that the power of Congress, as to foreign commerce, is only what it professes to be in the Constitution, a legislative power—to be exerted municipally, without consultation or agreement with those with whom we have an intercourse of trade. It is undeniable that the Constitution meant to provide for the exercise of another power, relatively to commerce, which should exert itself in concert with the analogous power in other countries, and should bring about its results, not by statute enacted by itself, but by an international compact called a treaty; that it is manifest that this other power is vested by the Constitution in the President and Senate, the only department of the government which it authorizes to make any treaty, and which it enables to make all treaties; that, if it be so vested, its regular exercise must result in that which, as far as it reaches, is law in itself, and, consequently, repeals such municipal regulations as stand in its way; since it is expressly declared by the Constitution, that treaties regularly made shall have, as they ought to have, the force of law.
Mr. PICKERING. To a just understanding of the question before the house, a distinction should be taken; that is, between the validity and the execution of a treaty. While gentlemen on the other side (with a single exception) admit that some treaties made by the President and Senate are valid without any act to be done on the part of this house, such as simple treaties of peace, and even of alliance,—seeing no special power is granted to Congress, by the Constitution, to make peace and form alliances,—yet it is said that, when the intervention of this house is necessary, as in providing and making appropriations of money to carry treaties into execution, then the sanction of this house is requisite, to give them a binding force.
But shall treaties operate a repeal of a law of the United States? Yes; because treaties being, equally with acts of Congress, the law of the land, they must repeal all the provisions of prior laws contravening their stipulations—according to the well-known maxim, that the latter laws repeal all antecedent laws containing contrary provisions; and so long as treaties exist, so long the government and nation are bound to observe them, and the decision of the judges must conform to their stipulations. But as treaties may thus annul the laws of Congress, so may these laws annul treaties; and when Congress shall, by a formal act, declare a treaty no longer obligatory on the United States, the judges must abandon the treaty, and obey the law. And why? Because the whole authority, on our part, which gave existence and force to the treaty, is withdrawn by the annulling act.
Mr. PINCKNEY. Such is the effect of a law of Congress declaring war against a nation between whom and the United States any treaties had been made. Take, for example, the case of France, with whom we had a treaty of amity and commerce, a treaty of alliance, and consular convention. These treaties having been repeatedly violated on the part of the French government, and the just claims of the United States for repairing the injuries so committed having been refused, and their attempts to negotiate an amicable adjustment of all complaints between the two nations having been repelled with indignity,—and as the French persisted in their system of predatory violence, infracting those treaties, and hostile to the rights of a free and independent nation,—for these causes, explicitly, Congress, in July, 179S, passed a law, enacting that those treaties should not, thenceforth, be regarded as legally obligatory on the government or citizens of the United States. And two days afterwards. Congress passed another law, authorizing the capture of all French armed vessels, to which the commerce of the United States long had been, and continued to be, a prey. And as in this, so in every other case, in which Congress shall judge there existed good and sufficient cause for declaring a treaty void, they will so pronounce; either because they intend to declare war, or because they are willing the United States should meet a war, to be declared on the other side, as less injurious to the country than an adherence to the treaty. But should Congress, without adequate cause, declare a treaty no longer obligatory, they must be prepared to meet the reproach of perfidy, besides exposing the United States to the evils of war, should the offended nation think fit to avenge the wrong by making war upon them.