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 Suppose the discriminating duties repealed on both sides by law; yet what is effected by this treaty would not even then be done: the plighted faith would be wanting; either side might repeal its law,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.
January 10, 1816.
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
