avail themselves of their local advantages, by new roads, by navigable canals, and by improving the streams susceptible of navigation, the general government is the more urged to similar undertakings, requiring a national jurisdiction, and national means, by the prospect of thus systematically completing so inestimable a work. And it is a happy reflection, that any defect of constitutional authority which may be encountered, can be supplied in a mode which the Constitution itself has providently pointed out.
On the Commercial Treaty with Great Britain.
House of Representatives, January 8, 1816.
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 under-
