Imatges de pàgina

except imposts on articles of absolute necessity, may be said to be voluntary in their operation; as the amount paid by any individual must always depend on his spontaneous purchase of the article.

The power of borrowing money on the credit of the United States is conferred on the National Government in general terms; but as the public credit of the Union must depend on the sources of revenue placed at its command, this power must have been intended to be exercised in anticipation of the national resources, and must, consequently, be subject to the same restrictions as to its objects, to which the power

of taxation is limited and confined. When the present Constitution was adopted, the United States were indebted to foreign nations for the expenses of our Revolutionary war; and many of our own citizens had large claims either upon the confederacy, or upon its separate members, for services and supplies during that eventful contest. To liquidate and consolidate those debts, discharge a part of them, and secure the remainder, were measures necessary to the preservation of the public faith, and the maintenance of the public interests, both at home and abroad. But to have resorted to taxation, in order immediately to accomplish these objects, would, had it even been practicable, have proved injurious to the nation, and ruinous to private individuals. It was foreseen that many of the public creditors would be satisfied with the assumption or recognition by the new government of the principal, and the payment of the interest of the public debts. Under the power conferred on Congress to borrow money, it was enabled to make the necessary provisions for combining the whole expenses of the war, whether incurred by the confederacy or the states, in one general amount, and funding it as one 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.



The powers, vested in the General Govern. ment 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 ministers, 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.

to it.

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

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 toʻgeneral 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 à 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.

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