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
