14 The treaty-making power is vested, not in Congress, but in the President, by and with the advice and consent of the Senate. A valid treaty can be abrogated only by the power which is competent to make one. A treaty already void needs no act of Congress or of the President or of the Senate to abrogate it, while one not void cannot be abrogated except in the constitutional way. A treaty, moreover, is the act of two parties. Neither can dissolve it without the concurrence of the other. The act of Congress, then, left the obligations of the ancient treaties, so far as France was concerned, and so far as the United States politically were concerned, just as it found them. Seventhly. As a last resort, the opponents of these claims assert that the release of the ancient treaties was valueless, because they had been abrogated by war between the two nations. I waive the objection that these treaties were of such a nature that they could not be abrogated by war, and I simply deny that any such war occurred. If war did take place, it must, have begun in some way and at some time,, and have ended in some other way and at some other time. It is quite certain that France never declared war against the United States, and equal}', so that the United States never declared war against France. There were hostilities between them, but hostilities are not always war. The statute book of the United States shows the nature and extent of these hostilities. We were not at war with France on the 14th of January, 1797; for on that day Congress declared it a misdemeanor for an American to engage in privateering against nations with whom the United States were at peace, and we know that France was then regarded as standing in that relation because the United States afterwards authorized privateering against her in certain cases. We were not at war with France on the 28th of May, 1798; for on that day Congress directed that a provisional army should be raised in the event of a declaration of war against the United States, or of actual invasion of their territory by a foreign Power, or of imminent danger of such invasion. Nor were we at war with France on the 13th of June, 1798; for on that, day Congress suspended commercial relations with France—a measure quite unnecessary, if war had already broken up that intercourse. Nor were we at war on the 25th of June, 1798 ; for on that day Congress authorized American vessels to oppose and resist searches, restraints,, and seizures, by armed vessels of France. Such opposition and resistance- would have needed no sanction if committed in open war. We were not at war with France on the 2d day of March, 1799 ; for on that day Congress authorized the President to levy and organize additional regiments, in case war should break out between the United States and a foreign European Power. We were not yet at war on the 20th of February, 1800 ; for on that day Congress directed that all further enlistments should be suspended, unless during the recess of Congress and during the existing differences (which existing differences the sequel wall show were not war) between the United States and France, or imminent danger of invasion of the territory of the- United States by that Republic, should, in the opinion of the President, be deemed to have arisen. Finally, we were not at war on the 30th of September, 1800 ; for on that day the then “existing differences” between France and the United States were adjusted by a Convention, concluded on the basis that al though,.
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