Page:Joseph Story, Commentaries on the Constitution of the United States (1st ed, 1833, vol III).djvu/363

whole number of members of the senate, instead of two thirds of those present.^[1]

§ 1501. Under the confederation congress possessed the sole and exclusive power of

entering into treaties and alliances, provided, that no treaty of commerce shall be made, whereby the legislative power of the respective states shall be restrained from imposing such imposts and duties on foreigners, as their own people were subjected to; or from prohibiting the exportation or importation of any species of goods or commodities whatsoever.

But no treaty or alliance could be entered into, unless by the assent of nine of the states.^[2] These limitations upon the power were found very inconvenient in practice; and indeed, in conjunction with other defects, contributed to the prostration, and utter imbecility of the confederation.^[3]
§ 1502. The power "to make treaties "is by the constitution general; and of course it embraces all sorts of treaties, for peace or war; for commerce or territory; for alliance or succours; for indemnity for injuries or payment of debts; for the recognition and enforcement of principles of public law; and for any other purposes, which the policy or interests of independent sovereigns may dictate in their intercourse with each other.^[4] But though the power is thus general and unrestricted, it is not to be so construed, as to destroy the fundamental laws of the state. A powder given by the constitution cannot be construed to authorize a destruction of other powers given in the same instrument. It must be con-

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1. Journal of Convention, p. 225, 326, 339, 341, 342, 343, 362; The Federalist, No. 75.
2. Confederation, Art. 9.
3. The Federalist, No. 42.
4. See 5 Marshall's Life of Washington, ch. 8, p. 650 to 659.