REMARKS IN THE SENATE, ON A JOINT RESOLUTION TO TERMINATE THE TREATY OF
1817 REGULATING THE NAVAL FORCE ON THE LAKES, JANUARY 18, 1865.
January 18th, the Senate considered a joint resolution passed
by the House of Representatives, for the termination of the
treaty between the United States and Great Britain regulating
the naval force on the Lakes.
The resolution, as it was passed by the House of
Representatives, recited, that the Treaty of 1817, as to
the naval force upon the Lakes, was designed as a temporary
arrangement only, and, although equal and just at the time it
was made, has become greatly unequal through the construction
by Great Britain of sundry ship-canals,--that the vast
interests of commerce upon the Northwestern Lakes, and the
security of cities and towns situated on their American
borders, manifestly require the establishment of one or more
navy-yards wherein ships may be fitted and prepared for naval
warfare,--and that the United States Government, unlike that of
Great Britain, is destitute of ship-canals for the transmission
of gunboats from the Atlantic Ocean to the Western Lakes,--and
therefore proposed to direct the President of the United States
to give notice to the Government of Great Britain that it is
the wish and intention of the Government of the United States
to terminate the arrangement of 1817, in respect to the naval
force upon the Lakes, at the end of six months from and after
giving the notice.
Mr. Sumner, from the Committee on Foreign Relations, reported
the following substitute.
“JOINT RESOLUTION to terminate the Treaty of 1817,
regulating the Naval Force on the Lakes.
“_Whereas_ the United States, of the one part, and the
United Kingdom of Great Britain and Ireland, of the other
part, by a treaty bearing date April, 1817, have regulated
the naval force upon the Lakes, and it was further
provided, that, ‘if either party should hereafter be
desirous of annulling this stipulation, and should give
notice to that effect to the other party, it shall cease
to be binding after the expiration of six months from
the date of such notice’; and whereas the peace of our
frontier is now endangered by hostile expeditions against
the commerce of the Lakes, and by other acts of lawless
persons, which the naval force of the two countries allowed
by the existing treaty may be insufficient to prevent; and
whereas, further, the President of the United States has
proceeded to give the notice required for the termination
of the treaty by a communication which took effect on the
23d November, 1864: Therefore,
“_Be it resolved by the Senate and House of Representatives
of the United States of America in Congress assembled_,
That the notice given by the President of the United States
to the Government of Great Britain and Ireland to terminate
the Treaty of 1817, regulating the naval force upon the
Lakes, is hereby adopted and ratified, as if the same had
been authorized by Congress.”
The substitute was adopted, and the question was on the passage
of the resolution as amended.
As appears from the amended resolution, the President had
already given the notice for the termination of the treaty.
Mr. Davis, of Kentucky, opposed the resolution, on the ground
that the notice to terminate a treaty can be given only by
Congress,--that the President had no more power to give the
notice than the Judiciary,--and that his interference with the
legislative power ought to be condemned, instead of approved by
adopting it.
Mr. Sumner replied, that the difference between the Senator
and the Committee was of form; and he proceeded to read a
communication, bearing date November 23, 1864, from Mr. Adams
to Earl Russell, setting forth the grievances on our northern
frontier, and giving formal notice, that, “in conformity with
the treaty reservation of the right, at the expiration of six
months from the date of this note the United States will deem
themselves at liberty to increase the naval armament upon the
Lakes, if in their judgment the condition of affairs in that
quarter shall then require it.” On this note was minuted:
“Delivered at the Foreign Office at fifteen minutes past six
o’clock, P. M.” In considering the validity of the notice by
the President, he referred to authorities, showing that a
treaty, like a law, could be repealed only by the legislative
power,[45] and argued that notice to terminate it must be given
by the same power. Mr. Sumner further said:--
But the Senator from Kentucky tells us that the original defect in
the notice by the President is of such a character that it cannot
be cured by any subsequent ratification; and he proceeds to present
what he will excuse me if I call imaginary cases, which I think could
hardly occur, and are widely different from that under consideration.
I express no opinion on the cases he does present,--as, for instance,
if the President, during the recess of Congress, should undertake to
involve the country in war. Let that case take care of itself, when
it arises for judgment. The case before us is more simple, and is one
with regard to which there are no private rights or interests. It is
a domestic question between Congress and the President. He has given
the notice. As regards the Government of Great Britain, that notice, I
cannot doubt, is perfectly valid. That Government will never call it
in question. For our own security, and that our precedents may conform
to just principles, we now propose by formal Act of Congress to throw
over this notice of the President the shield of Congressional sanction;
and the question is, Can this be done? Can Congress, by an act of
ratification, impart to the original notice of the President that power
and character which, without subsequent ratification, it would not
have? On that point I content myself with reading the authoritative
words of the Supreme Court of the United States in the decisions known
as the _Prize Cases_. There the Court express themselves as follows.
“Without admitting that such an act was necessary under the
circumstances, it is plain, that, if the President had in any
manner assumed powers which it was necessary should have the
authority or sanction of Congress, that, on the well-known
principle of law, ‘_Omnis ratihabitio retrotrahitur et mandato
æquiparatur_,’ this ratification has operated to perfectly
cure the defect. In the case of _Brown_ v. _United States_,
(8 Cranch, 131, 132, 133,) Mr. Justice Story treats of this
subject, and cites numerous authorities, to which we may
refer, to prove this position, and concludes: ‘I am perfectly
satisfied that no subject can legally commit hostilities
or capture property of an enemy, when, either expressly or
constructively, the sovereign has prohibited it. But suppose
he does, I would ask if the sovereign may not ratify his
proceedings, and thus, by a retroactive operation, give
validity to them?’”[46]
All now proposed is that Congress shall ratify the notice to the
British Government, and by retroactive operation give validity to it.
…
Mr. President, if this concerned private rights,--if, according to
the language of the Senator from Kentucky, there were any question
of _meum_ and _tuum_,--there might be force in his argument. But no
private rights are involved, and there are no private individuals
affected in any way by the proposed ratification of the notice already
given. Therefore I put out of view that suggestion. It is, then, simply
a question of power on the part of Congress, with no question of
private rights.
I conclude that Congress has the power, and I put my conclusion
on two distinct grounds. The first is the reason of the case, its
common sense; for without this power I can imagine difficulties or
embarrassments in the administration of government. I say the power
must exist in Congress of ratifying, if it sees fit, certain executive
acts. The second ground is judicial authority. The Supreme Court of
the United States, after careful consideration in recent cases which
the country knows received the amplest attention and were most fully
argued, has affirmed the power of Congress to ratify an executive act
which without such ratification might otherwise be invalid. But I do
not content myself with referring to that single decision, recent
and authoritative as it is; I recall attention also to that earlier
decision which is adduced in the Prize Cases, the case of _Brown_ v.
_The United States_, which is well known to all lawyers as one of the
best-reasoned judgments in our books, and in that case you will find
the same power attributed to Congress.
Therefore, on grounds of reason and of authority, I am not permitted to
doubt that Congress may exercise this power.
The resolution was adopted without a division, and communicated
to Mr. Adams in a despatch of Mr. Seward, under date of
February 13, 1865.[47]