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always did that which could not be done by law; and that the reasons advanced to prove that the treaty of peace repealed the act making war, so far from being peculiar to that case, apply to all treaties.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 It has repealed the discriminating duties between this country and England.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
