The daily union. [volume] (Washington [D.C.]) 1845-1857, 1846-03-02

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stituton. A latitudinous construction like this will
give TO Congress all power, on all subjects, and will
clothe with the omnipotenoe of the British Par
lament, which is said 10 be capable Of everything
short Of physical impossibities
! The favorite power under which Congress Ia
supposed to he invested with jurisdiction over urea
ties, is that OF declaring war.
! There can be no doubt, that declaration OF wal
terminates all treaties previously subsisng between
the beIgerents. II Congress choose TO abrogste
treaties by an actual exercise Of this power IN ma
king declaration Of war, no one VIII deny the ait
lthority But short Of this, u would require very
refined ingenuity TO trace the legislative competency
of Congress on the subject Treaties constitute the
conventional law of nations. As part OF public
law they are binding on the authorities Of the con-
tracing parties and being thus binding, for the pur-
pose Of securing good faith, they become part OF
the munieipal law of the respective nations, and in
this manner binding on the citizens or subjects Of
each country. SO ong treaty is a part Of the
public law IL belongs exclusively TO thstreaty -ma-
king power 10 alter or abosh IT, Such is the object
and letter Of the constitution, no less than the pTin-
cips ofinernaliona law. liza treaty be violated by
the other contracting party, and thus cease to be
binding as public law, Congress may declare Il no
longer binding, as a part Of the municipal law, on
the citizens. These arc the only contingencies in
which Congress, snder the constitution, can right
fully interfere with treaties. BY a declaration Of
war il may abrogate treaties, as constituting part
of public law; when the other party has violated the
treaty, made actual war II may declare such Irea-
~ no longer binding the cIuzens az part OF the
municipal law.
Ii is not proposed to declare against Great Brit
ain nor is il pretended that the treaty stipualons be-
tween the United States and that power have been
violated. How, then, can Congress, under the war
making power, have authority TO give the proposed
&, If he fU he
arises from a Misrepresentation Of the distinct at.
tributes of the different departments Of the govern
ment In war, quasi or actual, the legislature con-
trolls treaties; in peace, the ueaty-making power
alone makes, alters, or abollshes them,
IL is further commended, however, that Congress
has right to abrogae any treaty, when its effects
are found to be disastrous TO threaten the pub
lie interests and 10 make even preferable TO
longer continuance Of the evil.
When treaties become thus disastrous to the pub.
lie veal, they ought to be abrogatedj and, II the
other contracting panty refuse, by negotiation, TO
modify or abolish them there arises good cause Of
war. But if Congress, without declaration Of war,
under these circumstances, should undertake 10 de-
clare them void, have much misunderstood both
the integrity and the intelligence Of our judiciary II
all questions arising under such treaties would not
be adudged in reference TO the validity Of the trea
ties Notwithstanding the act Of Congress. The
only ground on which the action Of Congress, in
sucha case, could be justified, would be- not per
lam but ,upra eaTlam-the necessity OF the public
interests, for the time, setting aside the public
faith, and, by giving a belh TO the other
party, TO be used or not at its discretion, Con-
gress would make war; though it did not declare
il. Sir, | will now review the precedents which
have the history Of our country this sub
jeci; and, if mistake not, they will be found TO
conform to the statement Of elementary principles
az above sugs ssted. IL is to be regretted that all
the presidents were made in times of high party
and thRrs To
cion of intermingied Some Of them, how.
ever, have been quoted the other side; IT, there
fore, il can be shown that they inapplcable to
the question under consideration, that they prove
the negation Of legislative power in Congress, their
authority will scarcely be questioned.
The first controversy between the Executive and
Congress on this subject on jays treaty. Ii
was then contended and by the republican party,
that the House of Representatives was not bound
TO carry out treaty which had been made and rati-
fed by the President and Senate. Whenever It
was necessary TO cali on the House to make appro-
priatons execute treaty, it was contcndcd that
the whole matter was open, and an appropriation
might or might not be made, at the discretion of the
House. THIS doctrine is at war with the idea, that
a treaty properly made is the supreme law OF the
land; and in 1916, Congress, If not in form, certain
" in substance reversed this decision. Judge Kent
says, commenting on this matter: "The argument
in favor of the binding and conclusive efficacy Of
any treaty made by the President and Serate
is clear and papable that 1t has probably
carried very general conviction throughout tie
community, and this may now be considered as
the decided sensa of public opinion. This was the
of the House Of Representatives in 1916, and
the resolution of 1876 would not now be repeated"
Il Kent, Com, 2S7.
The next instance of legislative interference on
the subject Of treaties in 1898, when Congress
declared, by solemn act, that our treaties with
France were abrogated. This has been relied on
LaCxr he Incfa in pnint tn
prove the authority of Congress. careful review
of the circumstances will most fully show the re-
verse.
The bill which originated in the Senate
companied with long preamble, in which was full
ly set forth the acts of fragrant bad faith say
Of actual war; which had been perpetrated by France
against the United States Among other things,
that preamble recites that "whersas a regard to
tional interests requires (and the principles of the
law of nations justify the measure) that when one
party to solemn compact openly violates it, the
other is released from all its obligations" "" 1t il
clear that the authority here exercised by Congress
,oas municipal declaration only to the citizens OF
| the United States, directory of their duties and
rights in the premises in view Of the abrogation of
that part of the public law depending on conven-
ton, which had been made by France. Congress
did not assume to abrogate the treaties part of
public law; but finding It already violated and void,
it declared the citizen no longer bound by it.
Those who are a. all acquainted with the history
of that period, will rccollect that great Of
offence to our country had been given by Frances
all diplomatic intercourse refused; our ministers
were not only not received, but were actually in
suited by the French authorities; commerce
was subjected to spoliation, and every act which
could mark state of hostltes, with the single ex-
ception of formal declaration of war, was perpe-
trated In this state Of things, Congress assembled
Measures recommended and adopted to defend
the country in this emergency-in this war. 1t was
actual war, though, in the language of the times il
| was denomna;ed quasi WARRIOR no other reason,
| apprehend, but because hostilities had not been
preceded by a public manifesto or declaration OF
war, which, though usual in modern times, is no,
necessarily prerequisite.
| Among the measures adopted, was, not only the
abrogation tthe treaties previously subsisting be-
| tween the two counries--not only the nterdicting
| of all commercial intercourse between the cti-
! zens Of the two countries-not only declaration
of intention to treat with rigor such French ct-
zens as might be made prisoners, unless the in
suits and injuries upon American citizens should
be discontinued-but also the appointment Of Gen
| era Washington TO the command of the army, to-
gether with active military preparations Of oil kinds