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consolidated debt. The sources of revenue placed at the disposal of the Federal Government have since enabled it to discharge, not only the whole of this debt, but that, also, which occurred in the late war. But

in case of future exigencies, or a failure of the usual supplies of revenue, similar means are at its command for continuing its operations, maintaining its existence, and vindicating its honour.

LECTURE VIII.

ON THE POWERS VESTED IN THE FEDERAL GOVERNMENT FOR REGULATING INTERCOURSE WITH FOREIGN NATIONS.

THE powers vested in the General Government for regulating foreign intercourse, consist, First. Of the powers to make treaties; and to send and receive ambassadors, and other public ministers, and consuls.

Secondly. Of the power to define and punish piracies and felonies committed on the high seas, and other offences against the law of nations; and,

Thirdly. Of the power of regulating foreign commerce; including a power to prohibit, after a certain period, now elapsed, the importation of slaves.

This class of powers forms an obvious and essential branch of Federal administration; for if the United States are one nation in any respect, they are most clearly so in respect to other nations.

I. The powers to make treaties, and to send and receive ambassadors and other public minis

ters, are essential attributes of national sovereignty, and of that international equality which the interests of every sovereignty require it to preserve. Both powers were possessed by Congress under the Confederation, but not to the extent to which they are now enjoyed; for then the former power was embarrassed by an exception, under which treaties might be substantially frustrated by regulations of the states, and the latter did not comprehend "other public ministers and consuls."

As treaties with France and Holland, and especially the treaty of peace with Great Britain, existed when the Constitution was adopted, it became necessary to vary its terms in regard to treaties, from those relative to the laws of the United States; the declaration it contains in respect to the supremacy of the latter operating only in future, while in reference to the former the terms are, "all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land." These terms were intended to apply equally to previously existing treaties, as well as to those made subsequently to the Constitution; and it has, accordingly, been adjudged, by the Supreme Court, that they effectually repeal so much of the state laws and constitutions as are repugnant to them.*

More general and extensive terms, also, are used in vesting the power with respect to treaties, than in conferring that relative to laws; and, while the latter is laid under several restrictions, there are none imposed on the exercise of the former, notwithstanding it is committed to the

* 3 Dallas, 199.
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President and Senate, in exclusion of the House of Representatives, and is executed through the instrumentality of agents, delegated for the purpose. And although the President and Senate are thus invested with this high and exclusive control over all those subjects of negotiation with foreign powers, which, in their consequences, may affect important domestic interests, yet it would have been impossible to have defined a power of this nature, and, therefore, general terms only were used. These general expressions, however, ought strictly to be confined to their legitimate signification; and in order to ascertain whether the execution of the treaty-making power can be supported in any given case, those principles of the Constitution, from which the power proceeds, ought carefully to be applied to it. The power must, indeed, be construed in subordination to the Constitution; and however, in its operation, it may qualify, it cannot supersede or interfere with, any other of its fundamental provisions, nor can it ever be so interpreted as to destroy other powers granted by that instrument. A treaty to change the organization of the government, or annihilate its sovereignty, or overturn its Republican form, or to deprive it of any of its constitutional powers, would be void; because it would defeat the will of the people, which it was designed to fulfil.

A treaty, in its general sense, is a compact entered into with a foreign power, and extends to all matters which are usually the subject of compact between independent nations. It is, in its nature, a contract, and not a legislative act; and does not, according to general usage, effect of itself the objects intended to be accomplished

*

by it, but requires to be carried into execution by some subsequent act of sovereign power by the contracting parties, especially in cases where it is meant to operate within the territories of either of them. With us, however, a different principle is established. It has been settled by the Supreme Court, that, inasmuch as the Constitution declares a treaty to be the law of the land, it is to be regarded in courts of justice as equivalent to an act of the Legislature, whenever it operates of itself without requiring the aid of any legislative provision. But when the terms of any treaty stipulation import an executory contract, it addresses itself to the political, and not to the judicial, department for execution, and Congress must pass a law in execution of the compact, before it becomes a rule for the courts. The Constitution does not expressly declare whether treaties are to be held superior to the acts of Congress, or whether the laws are to be deemed coequal with or superior to treaties; but the representation it holds forth to foreign powers, is that the President, by and with the advice and consent of the Senate, may bind the nation in all legitimate contracts; and if pre-existing laws, contrary to a treaty, could only be abrogated by Congress, this representation would be fallacious. It would subject the public faith to just imputation and reproach, and destroy all confidence in the national engagements. The immediate operation of a treaty must, therefore, be to overrule all existing laws incompatible with its stipulations.

Nor is this inconsistent with the power of

* 2 Peters, 314.

Congress to pass subsequent laws, qualifying, altering, or wholly annulling a treaty; for such an authority, in certain cases, is supported on grounds wholly independent of the treaty-making power. For, as Congress possesses the sole right of declaring war, and as the alteration or abrogation of a treaty tends to produce it, the power in question may be regarded as an incident to that of declaring war. The exercise of such a right may be rendered necessary to the public welfare and safety, by measures of the party with whom the treaty was made, contrary to its spirit, or in open violation of its letter; and on such grounds alone can this right be reconciled either with the provisions of the Constitution or the principles of public law. A memorable instance has occurred in our history of the annulment of a treaty by the act of the injured party. In the year 1798, Congress declared that the treaties with France were no longer obligatory on the United States, as they had been repeatedly violated by the French government, and our just claims for reparation disregarded. Nevertheless, all treaties, as soon as ratified by competent authority, become of absolute efficacy, and, as long as they continue in force, are binding upon the whole nation. If a treaty require the payment of money to carry it into effect, and the money can only be raised or appropriated by an act of the Legislature, it is morally obligatory upon the legislative power to pass the requisite law; and its refusal to do so would amount to a breach of the public faith, and afford just cause of war. That department of the government which is intrusted with the power of making treaties may bind the national faith at its dis

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