“In pursuance of the authority conferred by a resolution of the
Senate of the United States, passed on the 3d of March last,
notice was given to Denmark, on the 14th day of April, of the
intention of this Government to avail itself of the stipulation
of the subsisting convention of friendship, commerce, and
navigation, between that kingdom and the United States, whereby
_either party_ might, after ten years, terminate the same at
the expiration of one year from the date of notice for that
purpose.”[49]
The treaty, it will be noted, reserves to _either party_--that is, to
_either of the Governments_ between whom it is made--the privilege of
terminating it by notice; and the President, without the sanction of an
Act of Congress, but simply in pursuance of a resolution of the Senate,
passed in Executive Session, _has constituted himself the Government_,
so far as to give such notice, and by such notice to abrogate the
treaty. Acting under his instructions, our Minister at Copenhagen, on
the 14th of April, 1855, notified the Danish Government, that,--
“After the expiration of one year from the date of this
communication, the United States will regard the general
convention of ‘friendship, commerce, and navigation,’ agreed
upon by Denmark and themselves on the 26th of April, 1826, as
_finally abrogated_, and that after that period its provisions
will not be binding upon our Government.”[50]
Thus undertaking, merely with the consent of the Senate, and without
the concurrence of the House of Representatives, to abrogate a treaty,
the President has assumed a power inconsistent with the Constitution,
and disowned by the practice of the Government, adopted, after debate,
on leading occasions. Such a usurpation cannot be justified by the good
that is sought; for that good might have been sought, and may still be
sought, by another course, in entire harmony with the Constitution and
the practice of the Government. Nor will any temporary purpose justify
the removal of constitutional safeguards.
The Constitution declares that the President “_shall have power_,
by and with the advice and consent of the Senate, to make treaties,
provided two thirds of the Senators present concur”; but it does not
declare that the President, by and with the consent of the Senate,
shall have power to abrogate treaties. The absence of all language
conferring this extraordinary power is itself an unanswerable argument
against the existence of the power. But we are not left to found our
conclusion even on irresistible inference. There are explicit words
of the Constitution, which determine it beyond doubt. It is declared,
that--
“This Constitution, and the laws of the United States which
shall be made in pursuance thereof, AND ALL TREATIES MADE _or
which shall be made under the authority of the United States_,
SHALL BE THE SUPREME LAW OF THE LAND.”
Thus declaring treaties to be “the supreme law of the land,” the
Constitution not only gives to them the highest authority, but places
them under the highest safeguard known to our institutions. When once
made, they are obligatory on our side as _laws_, and can be abrogated
by no power less than that which may abrogate existing laws. Not the
President alone, not the President and Senate, can set them aside; but
for this purpose the whole power of the Government must be invoked,
in its most solemn form, by Act of Congress. In conformity with
this requirement, the power to declare war, involving, of course,
the abrogation of treaties, is expressly lodged with Congress. The
President, with the consent of the Senate, cannot declare war; and it
is difficult to see what greater power he possesses in the abrogation
of a treaty, involving possibly the rupture of friendly intercourse
with a foreign nation, and involving certainly the overthrow of what
the Constitution declares to be the supreme law.
Thus placing treaties under all the sanctions of law, I follow the best
authorities. The eminent commentator, Mr. Justice Story, in speaking of
them, gives them this character. Expounding this very clause, he says:--
“It is therefore indispensable that they should have the
obligation and force of a law, that they may be executed by the
judicial power, _and be obeyed like other laws_. This will not
prevent them from being cancelled or abrogated by the nation,
upon grave and suitable occasions; for it will not be disputed
_that they are subject to the legislative power, and may be
repealed, like other laws, at its pleasure_.”[51]
And the Supreme Court of the United States affirm the same principle.
“A treaty is in its nature a contract between two nations,
not a legislative act.… In the United States a different
principle is established. _Our Constitution declares a
treaty to be the law of the land._ It is consequently to be
regarded in courts of justice as _equivalent to an Act of the
Legislature_, whenever it operates of itself, without the aid
of any legislative provision.”[52]
This is a decision comparatively recent. But early in our history the
authority of treaties was much considered by the Supreme Court, in the
famous case of _Ware_ v. _Hylton et al._, 3 Dallas, 199-285, and we
find judges from opposite sections of the country arriving at the same
conclusion. Mr. Justice Gushing, of Massachusetts, said:--
“The treaty … is of _equal force_ with the Constitution
itself, and _certainly with any law whatsoever_.”[53]
Mr. Justice Iredell, of North Carolina, passed directly upon the power
of Congress, asserting that to this body alone was given the power to
abrogate a treaty under our Constitution. These are his words:--
“It is a part of the Law of Nations, that, if a treaty be
violated by _one party_, it is at the option of _the other
party_, if innocent, to declare, in consequence of the breach,
that the treaty is void. _If Congress, therefore, who, I
conceive, alone have such authority under our Government_,
shall make such a declaration in any case like the present, I
shall deem it my duty to regard the treaty as void.”[54]
In practical illustration of the legal character attributed to
treaties, it will be observed that they are published with _the Laws of
the United States_, and constitute part of this collection, being bound
between the same covers; and I submit that the President and Senate
might undertake to tear out a leaf from the Statutes at Large with as
much propriety as to tear out an existing treaty.
Such is the rule of the Constitution, in conformity with which is the
practice of the country. Never before has the President assumed to act
without the House of Representatives in the performance of this duty.
* * * * *
This question arose early after the adoption of the Constitution, in
our relations with France; and you will find, Sir, on our statute-book
the evidence of the way in which it was regarded. In 1798, the existing
treaties with France were abrogated by Act of Congress, which, after a
preamble, proceeded as follows:--
“_Be it enacted by the Senate and House of Representatives
of the United States of America in Congress assembled_, That
the United States are of right freed and exonerated from the
stipulations of the treaties and of the consular convention
heretofore concluded between the United States and France,
and that the same shall not henceforth be regarded as legally
obligatory on the Government or citizens of the United
States.”[55]
This very Act of Congress originated in the Senate, which at that
day undertook to exercise no such power as is now claimed. It was
not passed hastily, or without debate. The subject of our relations
with France was referred to a committee of that body on the 29th of
November, 1797. After the lapse of months, on the 21st of June, 1798,
Mr. Goodhue, from that committee, reported a bill to abrogate existing
treaties with that nation, which passed the Senate on the 23d of June,
by a vote of thirteen yeas to five nays. On the 25th it was carried to
the House of Representatives, where it was referred to the Committee
of the Whole on the State of the Union, fully debated, and finally
passed on the 6th of July. In the course of the debate, _treaties
were recognized as laws, to be abrogated only by Act of Congress_.
A Representative from Massachusetts, afterwards an eminent judicial
character, Mr. Sewall, put this point in these words:--
“It is certainly a novel doctrine to pass a law declaring
a treaty void; but the necessity arose from the peculiar
situation of this country. In most countries it is in the power
of the Chief Magistrate to suspend a treaty, whenever he thinks
proper. _Here Congress only has that power._”[56]
This view was in no respect controverted or questioned. On the
contrary, it was recognized by the whole debate. Mr. Dana, of
Connecticut, said:--
“France has violated the faith pledged by her treaties
with America. This, by the Law of Nations, _puts it within
the option of the Legislature to decide_, as a question of
expediency, whether the United States shall any longer continue
to observe their stipulations.”[57]
Mr. Gallatin, whose position in our public affairs was afterwards so
justly distinguished, employed the very language applicable to laws,
when he spoke of the proposed abrogation of the treaty as a _repeal_.
“He knew of no precedent of a Legislature _repealing a
treaty_. It is therefore an act of a peculiar kind, and it
appeared to him necessary that _Congress_ should justify it
by a declaration of their reasons.… It is not sufficient to
say, that, because a treaty has been violated, _we will repeal
it_.”[58]
Such is the first and leading precedent in our history. The next is
more recent, and of hardly less importance. It was the notice to Great
Britain of the termination of the convention of 1827, relating to the
joint occupancy of certain parts of Oregon. This was not done by the
President, with the advice of the Senate in secret session, but by Act
of Congress. President Polk, in his annual message of 2d December,
1845, called upon Congress to act. These are his words:--
“Under that convention, a year’s notice is required to be given
by _either party_ to the other, before the joint occupancy
shall terminate, and before either can rightfully assert
or exercise exclusive jurisdiction over any portion of the
territory. This notice it would, in my judgment, be proper to
give; _and I recommend that provision be made by law for giving
it accordingly_, and terminating in this manner the convention
of the 6th of August, 1827.”[59]
In pursuance of this recommendation, _provision was made by law for
this notice_. You will remember, Sir, the debate which for months
occupied both Houses of Congress, and was closed by the passage of a
joint resolution, approved 27th April, 1846, which, after a preamble,
proceeds as follows.
“_Resolved by the Senate and House of Representatives of
the United States of America in Congress assembled_, That
the President of the United States be, and he is hereby,
authorized, at his discretion, to give to the Government of
Great Britain the notice required by the second article of
the said convention of the sixth of August, 1827, for the
abrogation of the same.”[60]
This instance is particularly in point; for the treaty was terminated,
in accordance with its stipulations, by notice from the United
States,--precisely as it is now proposed to terminate the treaty with
Denmark. And the notice given to Great Britain with regard to the
treaty is declared to be “for the abrogation of the same.”
Such, Sir, is the rule of the Constitution, sustained by authoritative
precedents, in the abrogation of successive treaties with two powerful
nations, France and Great Britain. Surely there cannot be one rule for
large nations and another for small nations; nor will any one argue
that a treaty with France or Great Britain can be abrogated only by
Act of Congress, but a treaty with Denmark may be abrogated by the
President without an Act of Congress. And yet, in apparent harmony with
this fallacious distinction, the Executive, merely with the consent
of the Senate, obtained in secret session, assumes to abrogate a
treaty with weaker Denmark, and has given notice that this abrogation
will take effect on the ensuing 14th of April. Not content with the
_treaty-making_ power which it possesses under the Constitution, it
assumes the _treaty-abrogating_ power, which it does not possess. And
this assumption becomes more objectionable, when it is considered how
completely it excludes the House of Representatives from an important
function in the Government. Louis the Fourteenth, in the pride of
conscious power, exclaimed, “I am the State”; and permit me to say,
that our own Executive, undertaking to act in this matter without
the sanction of Congress, effectively makes the same declaration. To
the Senate is justly accorded large powers; but it now assumes more.
Only lately it authorized the origination of the great appropriation
bills, constituting the mainspring of the Government, in defiance of
uninterrupted usage, and, as I submit, the spirit of the Constitution.
What next, Sir? “Glamis thou art, and Cawdor!” And where, Sir, in this
career of aggrandizement, will you stop?
Whatever may be the merits of the existing controversy with Denmark,
I trust that the President will not clutch so eagerly at the promised
fruits as to disregard the requirement of the Constitution, and the
voice of the popular branch, in the repeal of an existing law. In vain
you will urge the good accomplished. To do even a great right, it is
not safe to do even a little wrong. At all events, I call attention
to this extraordinary assumption, that it may not be recorded for a
precedent. I call attention to it, also, that the needful steps may be
taken forthwith, in order to make effective the notice which has been
given, without due authority under the Constitution. The treaty with
Denmark is at this moment part of the supreme law of the land, and can
be abrogated only by Act of Congress.
A debate ensued, in which the conclusions of Mr. Sumner were
maintained by Mr. Seward, of New York, Mr. Fessenden, of
Maine, Mr. Collamer, of Vermont, Mr. Crittenden, of Kentucky,
and Mr. Stuart, of Michigan,--and controverted by Mr. Mason,
of Virginia, Mr. Toucey, of Connecticut, and Mr. Cass, of
Michigan. Mr. Mason proposed to amend the pending resolution by
striking out the second clause, which amendment Mr. Sumner at
once accepted, and closed the debate as follows.
MR. PRESIDENT,--My desire is simply to bring the question before the
Committee, and, to accomplish this, I shall not stand on the form of
the resolution. I am aware that it is argumentative, and involves,
perhaps, a reflection upon the course of the Executive; but I adopted
this form purposely, from a desire that the resolution should tell
the whole story on its face, and speak for itself. The ample debate
that has occurred supersedes all such desire. The subject is fully
before the Senate, and I doubt not will receive the attention of the
Committee.
In introducing this question, I remarked that it was of domestic
concern under our own Constitution, with which, of course, Denmark
has nothing to do. All references, therefore, to that power have
been superfluous, if not illogical. Her consent is not sought in
the proposed termination of the treaty. On the contrary, it will be
terminated against her desires. We must look for our rule of conduct to
our own Constitution. This I assume as an undeniable postulate.
The discussion, though protracted, has not been unprofitable; but at
each stage we have been brought back to the clear and unmistakable
distinction between the power to make treaties and the power to
abrogate them, under the Constitution. The President, by and with the
advice and consent of the Senate, may make treaties; but there is
nothing in our Constitution conferring upon them the power to abrogate
treaties. To attribute to them any such power is to go beyond the
Constitution. Nor has any Senator distinctly, and in terms, claimed
for them this power. On the contrary, I think that Senators on the
other side--both the Senator from Virginia and the Senator from
Connecticut--admit that a treaty cannot be abrogated, except by virtue
of an Act of Congress. I understood the Senator from Connecticut to
make this admission, and I believe the Senator from Virginia did also.
MR. MASON nodded assent.
MR. TOUCEY. I mean, except by Act of Congress or a new treaty.
MR. SUMNER. I put aside the whole idea of a new treaty, constituting in
itself a new transaction, and involving the concurrence of the foreign
power. The President and Senate, with the concurrence of a foreign
power, may, of course, make a new treaty; but we are now dealing with
the case where the whole proceeding is without any such concurrence.
The question does not turn on the _treaty-making_ power, but on the
_treaty-abrogating_ power. And I come back again to the admission of
both Senators, that a treaty can be abrogated only by Act of Congress.
This admission is important, and, as it seems to me, conclusive.
But here a distinction is made by these Senators between treaties
which contain no provision for their termination and treaties which
contain such provision. And I understand the Senator from Virginia to
maintain that a treaty terminated in pursuance of such a provision
is not _abrogated_. This is strange; for in both cases the treaty
is brought to an end by our special intervention, and this is done
_without the concurrence of the other contracting party_. If this is
not the abrogation of a treaty, I do not see what can be. You may, if
you choose, call it by a softer term, but still it is the same thing.
The treaty is invalidated, or made to cease. But I will not argue this
question. I submit to Senators opposite, who have maintained their
views with so much constancy, that their position is not tenable; I say
this frankly, but with entire respect for their learning and ability.
The same power must be invoked to terminate a treaty containing a
provision for its termination, on notice from _either party_, as to
terminate a treaty containing no such provision; and in both cases the
treaty may properly be said to be abrogated. The single distinction
between the two cases is, that the treaty in one case is abrogated
in defiance of the other party, and perhaps on hostile ground, while
in the other case it is abrogated in pursuance of a power specially
reserved, and therefore without any just cause of offence; but in both
cases the life of the treaty is destroyed by our act. Permit me to add,
that the distinction made between these two classes is a distinction
without a difference, and the admission that a treaty can be abrogated
only by Act of Congress is as applicable to one class as to the other:
it settles the question.
I rest, then, confidently in the conclusion, that a treaty is part
of the supreme law of the land, and cannot be set aside, terminated,
superseded, disclaimed, repealed, or abrogated, except by the exercise
of the highest power known to the Constitution, embodying the collected
will of the whole people in a legislative act, under the sanction
of the Senate and House of Representatives of the United States in
Congress assembled.
The resolution, as modified, was adopted.
On the 7th of April, Mr. Mason, from the Committee on Foreign
Relations, reported the following resolution.
“_Resolved_, That the notice which has been given by
the President to Denmark, pursuant to the resolution of
the Senate of the 3d of March, 1855, to terminate the
treaty with that power of the 26th of April in the year
1826, is sufficient to cause such treaty to terminate and
be annulled to all intents whatsoever, pursuant to the
eleventh article thereof, and that no other or further act
of legislation is necessary to put an end to said treaty,
as part of the law of the land.”
This was considered May 8th, 1856, when Mr. Sumner spoke as
follows.
Mr. President,--As this subject was originally brought before the
Senate on my motion, I hope to be indulged while I state briefly what
seems to be the true state of the question.
By the usage of most countries, the war-making power, the
treaty-making power, and the treaty-abrogating power are all lodged in
one and the same body. For instance, in England, the Queen in council
declares war, makes treaties, and also abrogates treaties: so also do
the other sovereigns of Europe. This is the growth of custom, and has
become European constitutional law. But it is otherwise in the United
States, where, according to the Constitution, the war-making power
is expressly lodged in Congress, while the treaty-making power is
expressly lodged in the President, acting with the advice of two thirds
of the Senate. Nothing express appears in the Constitution with regard
to the treaty-abrogating power. We are left to argument and inference,
in order to ascertain whether this great attribute belongs with the
war-making power to Congress, or with the treaty-making power to the
President and Senate.
To me there are three considerations, each of which seems to be
decisive, while the three combined compel us irresistibly to the true
conclusion.
_First._ In the absence of any express words in the Constitution,
the power to abrogate treaties should not be attributed to any _mere
fraction_ of the Government, as to the President, or to the President
and Senate, nor to any branches short of the whole Government embodied
in an Act of Congress. In view of the magnitude of the power, I am at a
loss to see how any other conclusion can be adopted on this point.
_Secondly._ The Constitution has expressly lodged the war-making power
in Congress, and, in doing so, seems by implication to have placed the
treaty-abrogating power in the same body; for the latter seems to be an
incident of the former. The abrogation of a treaty may be the prelude
of war; indeed, it may practically amount to a declaration of war.
The powers, though differing in degree, are kindred in character, and
should go together.
_Thirdly._ The Constitution has stepped forward, and expressly declared
that treaties shall be “the supreme law of the land”; and I know no
way in which these words can have complete efficacy, unless they are
held to impress upon treaties _the character of law, so that they will
not only be recognized as such by the courts, but also be irrepealable
except by Act of Congress_.
And this conclusion is confirmed by the practice of the Government
on two important occasions, in abrogating all subsisting treaties
with France in 1798, and in abrogating the convention with England
relating to Oregon as late as 1846. I do not dwell on these instances,
or their authoritative character; for I went over them at length on a
former occasion. Now, for the first time in our history, an opposite
practice is adopted, contrary to precedents, and also, as it seems
to me, contrary to reason. It is proposed to terminate a subsisting
treaty with Denmark, establishing reciprocal privileges of trade,
and especially regulating the payment of Sound dues, without any Act
of Congress, but simply by virtue of a resolution of the Senate. The
novelty of this course creates an impression against it. But this is
vindicated by the Committee on Foreign Relations, in an elaborate
report, on the ground of a peculiar provision in the treaty, as follows.
“The present convention shall be in force for ten years from
the date hereof, and further until the end of one year _after
either of the contracting parties_ shall have given notice
to the other of its intention to terminate the same,--_each
of the contracting parties_ reserving to itself the right of
giving such notice _to the other_ at the end of the said term
of ten years; and it is hereby agreed between them, that, on
the expiration of one year after such notice shall have been
received _by either from the other party_, this convention
and all the provisions thereof shall altogether cease and
determine.”
It is admitted, as I understand, that, without this provision, the
treaty could not be terminated, except by Act of Congress; but it
is said, that, under this provision, no such Act is required. It is
difficult to understand the ground of this distinction; for there is
nothing in this provision to take power from Congress and confer it
upon the Senate alone. Point out the words, if they exist. They are not
there. How, then, can you infer them? The treaty is to be terminated
on notice from _either party_; and this notice must proceed from _the
same power_ which, in the absence of such provision, would be competent
to act. The mode of action is different, but _the acting power_ is the
same in both cases.
This treaty may be terminated on notice from “either of the contracting
parties.” In other treaties, having a similar provision, other
equivalent terms are employed: as in the treaty with Greece in 1837,
and with Sardinia in 1838, where the term “high contracting parties”
is employed; the treaty with Hanover in 1840, and with the Hanseatic
Republics in 1852, where the term “Government of the United States on
the one part” is employed; and, again, in the treaty with New Granada
in 1844, where the term “one of the two Governments” is employed. These
terms are all identical in meaning; and they signify that the notice in
all cases must be _an act of the Government_.
Who, then, for this purpose, is the Government, under the Constitution
of the United States? Surely, the power that can abrogate a treaty,
and nothing short of this; and this power, we have already seen, is
represented by an Act of Congress alone.
The Committee in their report, undertake to set forth the difference
between treaties which contain no provision for their termination and
those which do contain such provision, as follows.
“The distinction in the character of the acts, in the one class
of treaties and in the other, consists in this: that in the
first class, as in the treaties with France in 1798, they were
annulled as to the other party, _se invito_; in the second, in
the case with England, they became null with the assent of that
power previously given.”
Permit me to say that this does not seem to be a correct statement of
the difference between the two classes; for in both cases the treaties
were annulled contrary to the desire of the opposite party; and it is
notorious that the pending proceedings to annul the treaty with Denmark
are contrary to the desire of that power. No, Sir: the difference
between the two cases must be found in something else, which seems to
me palpable and unmistakable. It is this.
By the Law of Nations, in the absence of any express stipulation, a
treaty is of perpetual obligation on both parties,--to be abrogated
only by a new treaty having the assent of both parties, or by the act
of one party, alleging bad faith or hostile intent in the other, and on
this account declaring before the civilized world a release from all
its obligations. Such an act not only operates upon the other party _in
invitum_, but it is also _offensive in character_. But if any express
stipulation is introduced, authorizing the termination of the treaty
on notice from either party, then it may be abrogated in conformity to
the stipulation, even contrary to the desire of the opposite party,
_without giving cause of offence_; and this will be found to be the
sole practical distinction between the two cases. In both, the same
_power_ must be invoked; but it acts in different ways.
The question in the present case is of importance in two aspects:
_first_, as it involves the determination of a question of political
power under our Constitution; and, _secondly_, as it may affect the
interest of private individuals.
In the first aspect, the question would not be unimportant,
constitutionally, if the treaty with Denmark were the only one affected
by it; but the frequency of the provision in recent treaties adds to
its interest. Unknown in early days, it makes its first appearance as
late as 1822 in a treaty with France, and then in 1826 in this very
treaty with Denmark; but it has been repeated constantly since. Here is
a list, now in my hand, of no less than _forty-six_ different treaties
of the United States with _thirty-two_ different foreign powers, in
which this provision will be found. Among these is the important
stipulation with Great Britain, under which a squadron is kept on the
coast of Africa for the suppression of the slave-trade; and you are now
to determine whether the Senate will assume to itself the extraordinary
power now claimed over all these treaties, or will leave it in the
hands of Congress. And, still further, if this power is assumed by
the Senate, can it be exercised by a mere majority, or will a vote of
two thirds be required? How shall this question be decided? This very
difficulty of detail helps point to the true conclusion. But here is
the list.
_Memorandum of Treaties containing provision for their termination._
+----------------------+----------------+--------+-------+------+
| With what country | Date. |Article |Vol. of|Pages.|
| made. | | | Laws. | |
+----------------------+----------------+--------+-------+------+
|France |24 June, 1822| 7 | 8 | 280 |
| ” | 9 Nov., 1843| 6 | 8 | 582 |
| ” |23 Feb., 1853| 13 | 10 | 999 |
|Denmark |26 April, 1826| 11 | 8 | 342 |
|Sweden and Norway | 4 July, 1827| 19 | 8 | 356 |
|Great Britain | 6 August, 1827| 2 | 8 | 360 |
| ” ” | 6 August, 1827| 2 | 8 | 362 |
| ” ” | 9 August, 1842| 11 | 8 | 577 |
| ” ” |15 Dec., 1848| 22 | 9 | 970 |
| ” ” | 5 June, 1854| 5 | 10 | 1092 |
|Hanseatic Republics |20 Dec., 1827| 10 | 8 | 370 |
| ” ” |30 April, 1852| 2 | 10 | 962 |
|Prussia | 1 May, 1828| 15 | 8 | 386 |
| ” |16 June, 1852| 5 | 10 | 967 |
|Brazil |12 Dec., 1828| 33 | 8 | 397 |
|Austria |27 August, 1829| 12 | 8 | 401 |
| ” | 8 May, 1848| 5 | 9 | 947 |
|Mexico | 5 April, 1831| 34 | 8 | 426 |
| ” | 2 Feb., 1848| 17 | 9 | 935 |
|Chile |16 May, 1832| 31 | 8 | 440 |
|Russia | 6-18 Dec., 1832| 12 | 8 | 450 |
|Venezuela |20 Jan., 1836| 34 | 8 | 482 |
|Morocco |16 Sept., 1836| 25 | 8 | 487 |
|Peru-Bolivian Confed’n|30 Nov., 1836| 30 | 8 | 495 |
|Greece |10-22 Dec., 1837| 17 | 8 | 506 |
|Sardinia |26 Nov., 1838| 19 | 8 | 520 |
|Netherlands |19 Jan., 1839| 6 | 8 | 526 |
| ” |26 August, 1852| 6 | 10 | 985 |
| ” |22 Jan., 1855| 15 | 10 | 1156 |
|Ecuador |13 June, 1839| 35 | 8 | 550 |
|Hanover |20 May, 1840| 9 | 8 | 558 |
| ” |10 June, 1846| 11 | 9 | 866 |
| ” |18 Jan., 1855| 5 | 10 | 1141 |
|Portugal |26 August, 1840| 14 | 8 | 568 |
|New Granada | 6 March, 1844| 11 | 8 | 586 |
| ” ” |12 Dec., 1846| 35 | 9 | 899 |
|Belgium |10 Nov., 1845| 19 | 8 | 612 |
|Two Sicilies | 1 Dec., 1845| 12 | 9 | 841 |
|Swiss Confederation |18 May, 1847| 3 | 9 | 903 |
|Mecklenburg-Schwerin | 9 Dec., 1847| 11 | 9 | 920 |
|Guatemala | 3 March, 1849| 33 | 10 | 888 |
|Hawaiian Islands |20 Dec., 1849| 16 | 9 | 982 |
|San Salvador | 2 Jan., 1850| 35 | 10 | 898 |
|Costa Rica |10 July, 1851| 13 | 10 | 924 |
|Peru |26 July, 1851| 40 | 10 | 946 |
|Bavaria |12 Sept., 1853| 5 | 10 | 1025 |
+----------------------+----------------+--------+-------+------+
Are you aware, Sir, of the extent to which the abrogation of this
treaty may affect private interests, and therefore directly raise
for the judgment of the courts the question of the validity of your
proceeding? By this treaty Danish ships and cargoes are put upon
the footing of those of the most favored nations, and exempted from
discriminating duties; but these privileges must, of course, cease
with the treaty. Now, if a Danish vessel should arrive in the coming
month at New York, from St. Thomas, or at San Francisco, on her way
from Manila, as has latterly happened, the question would at once be
presented, whether the treaty had been legally abrogated, so as to
expose the vessel and cargo to the discriminating duties and fees? That
I may not seem to imagine a case, I call your attention to a list of
these duties and fees.
[Here Mr. Sumner went into details which are omitted. At
this stage he was interrupted by a question from a Senator.]
MR. CLAYTON. I wish to ask the Senator, whether, in his
judgment, supposing the treaty to be abrogated, our Act of
Congress of 1828 would not authorize the executive department
of the Government to admit free of duty any articles from
Denmark?
MR. SUMNER. The Senator is, perhaps, right. The President may remit
these discriminating duties; but I believe he can do it only after
information from Denmark as to her course. He cannot do it _at once_;
and I now refer to these duties simply to show that at this moment,
while I speak, a practical question may arise in our courts, or at our
custom-houses, as to the validity of the act of abrogation.
These things will at least make you hesitate before you assert a
power which is without precedent, and which at a former day was
disowned in this very case. By referring to the published diplomatic
correspondence, it appears that Mr. Buchanan, when Secretary of State,
in a letter to our representative at Copenhagen, dated 14th October,
1848, twice over recognized this power in Congress. “_Congress_ may,
therefore, at any moment, authorize the President to terminate this
convention.” Mark, Sir, he did not say the Senate, but Congress. And
then again he says: “It is probable that two years might elapse before
the existing convention could be terminated, AS AN ACT MUST FIRST PASS
CONGRESS _to enable the President to give the required notice, after
which a year must expire before it could be rendered effectual_.”[61]
It appears, also, that the House of Representatives, proceeding on
this understanding, had already initiated a joint resolution on this
subject, and therefore were in some measure seized of it, when the
Senate undertook to act alone. It seems to me that the course you have
commenced should be retraced, and that a joint resolution, or Act of
Congress, for the abrogation of the treaty, should be introduced at
once, if it is considered, in the present state of negotiations on this
question among the European nations, that the abrogation of the treaty
should be pressed immediately.
I desire the opinion of the Senate simply on the necessity of
present action by joint resolution,--leaving to another time, or to
the Committee, the question, whether the joint resolution shall be
prospective in its operation, or retroactive, so as to take advantage
of the notice already given? In order to have a decision of
this single point, I move to strike out all of the resolution now
pending after the word “_Resolved_,” and insert as follows:--
“That the Committee on Foreign Relations be instructed to report a
joint resolution of Congress, providing for the effectual termination
of the convention with Denmark of the 26th of April, 1826.”
The subject was debated by Mr. Stuart, Mr. Clayton, Mr. Hale,
Mr. Bayard, Mr. Toombs, Mr. Collamer, Mr. Benjamin, and Mr.
Crittenden, when the Senate adjourned without a vote. It rested
for a long time, when, on July 22d, while Mr. Sumner was absent
from the Senate, disabled by injuries, Mr. Mason moved it
again. The Senate refused to consider it by a vote of sixteen
ayes to twenty noes, and from that time it was abandoned. Since
then treaties have been abrogated by Act of Congress, and this
may be considered the established rule.
The question of the Sound Dues, out of which this debate
arose, was settled by “friendly negotiation,” according to the
original suggestion of Mr. Webster. An arrangement was made by
the different powers of Europe, March 14, 1857, capitalizing
the tax levied by Denmark, and assuming in ratable proportions
the payment of the full sum on condition that the tax should
cease. The United States kept aloof from this arrangement, but
by separate treaty, April 11, 1857, obtained the same immunity
by paying 717,829 rix dollars, with the further recognition of
the treaty of 1826, except the article on the Sound Dues.[62]