Part 8

MY DEAR SIR,--I cannot be present at the festival in commemoration of the election of Mr. Banks as Speaker. My duties will keep me here.

But with you I rejoice in this triumph of Freedom, which is the first achieved in the National Government, since the recognition, by the earliest Congress under Washington, of the Ordinance prohibiting Slavery in the Northwestern Territory. To advance this victory, and to obtain its just fruits, there must be no relaxation of efforts, but constant exertion, with union among good men, and a determination to yield no jot in the conflict.

To Massachusetts belongs an honorable place at the head of the battle. May no treason or hesitation of any of her sons deprive her of this post!

Yours, faithfully,

CHARLES SUMNER.

F. H. UNDERWOOD, Secretary, &c., &c.

THE ABROGATION OF TREATIES.

SPEECHES IN THE SENATE, MARCH 6 AND MAY 8, 1856.

The effort to obtain for the Senate the power to abrogate treaties had peculiar interest at this time, from the known desire of certain Senators to terminate the stipulation between the United States and Great Britain, requiring a naval force on the coast of Africa for the suppression of the slave-trade. In 1854 Mr. Slidell brought forward a proposition to this effect in Executive Session, assuming that the stipulation could be terminated by a simple vote of the Senate. Mr. Sumner insisted that the prerogative belonged to the law-making power, and could be exercised only by Act of Congress. By his effort the proposition was defeated.

The power of the Senate over the abrogation of treaties was brought forward in Legislative Session, on the motion of Mr. Sumner, in connection with the Danish Sound dues, being the tax at Elsinore laid by Denmark upon the cargoes of vessels passing through the Sound into and out from the Baltic Sea. In 1841, Mr. Webster, as Secretary of State, traced the origin of this tax to the treaty of 1645 between Denmark and Holland, embracing a tariff of the principal articles then known in commerce; which treaty was the basis of our own concluded with Denmark in 1826, and limited to continue ten years from date, and further until the end of one year after notice by either party of an intention to terminate it; but he contented himself with recommending friendly negotiations, “with a view of securing to the commerce of the United States a full participation in any reduction of these duties, or the benefits resulting from any new arrangements respecting them which may be granted to the commerce of other states.”[47] In 1848, Mr. Buchanan, as Secretary of State, instructed our Minister at Copenhagen, that, “under the public law of nations, it cannot be pretended that Denmark has any right to levy duties on vessels passing through the Sound from the North Sea to the Baltic.” President Pierce, in his annual message of 1854, proposed to terminate the treaty of 1826; the Senate, by simple resolution in Executive Session, March 3, 1855, undertook to terminate it; and the President, in his annual message of 1855, announced that the proper notice had been given to Denmark.[48]

Mr. Sumner, impressed with the conviction that this notice was a bad precedent, and in the interest of the Slave Power, which controlled the Senate, besides being inadequate under the Constitution, brought forward the following resolution:--

“_Resolved_, That the Committee on Foreign Relations be directed to consider the expediency of some act of legislation, having the concurrence of both Houses of Congress, by which the treaty with Denmark regulating the payment of Sound dues may be effectively abrogated, in conformity with the requirements of the Constitution, under which every treaty is a part of ‘the supreme law of the land,’ and in conformity with the practice of the Government in such cases,--and especially to consider if such legislation be not necessary forthwith, in order to supply a defect in the notice of the purpose of the United States to abrogate the said treaty, which the President has undertaken to give to Denmark without the authority of an Act of Congress, and in disregard of the function of the House of Representatives in the abrogation of all existing laws.”

On his motion the Senate proceeded to its consideration, March 6, when he spoke as follows.

MR. PRESIDENT,--If I can have the attention of the Senate for a brief time, I will explain the object of this inquiry. The subject may be dry, but it is important, and, at this moment, of direct practical interest.

The President in his annual message named three different questions, arising out of our relations with foreign nations. Two of these, concerning England, have been discussed in the Senate; the other, which concerns the payment of the Sound dues to Denmark, has not yet been mentioned here. Introducing it now, I have no purpose to say anything on the character of these dues, or to arrest the efforts of the Government for the relief of our commerce from foreign exactions. That is a broad field of history and of public law, which for the present there is no occasion to enter. My desire is simply to open a question of domestic interest under our own Constitution, with which, of course, Denmark has no concern, but which is necessarily involved in the determination of our course on this matter.

The President, in his annual message, announces:--

“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.