Part 9

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in the conclusion, that a treaty is part of the supreme law of the land, and cannot be set aside, terminated, superseded, disclaimed, repealed, or abrogated, except by the exercise of the highest power known to the Constitution, embodying the collected will of the whole people in a legislative act,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]

REPLY TO ASSAULTS ON EMIGRATION IN KANSAS.

SPEECH IN THE SENATE, ON THE REPORT OF THE COMMITTEE ON TERRITORIES, MARCH 12, 1856.

The terrible strife which began with the Kansas and Nebraska Bill was at its height during the winter. Freedom and Slavery were at a death-grapple in the Territory. Organized bands proceeded from the South, which were encountered by peaceful emigration from the North. The whole country was aroused. South and North were in a flame. On the one side there was a persistent effort to subject the Territory to Slavery; on the other side an equally persistent effort to save it to Freedom. At this stage, Mr. Douglas, from the Committee on Territories, presented a very long Report, purporting to be on the affairs of Kansas, where everything was represented unfavorably to the Northern emigrants, and especially to the Emigrant Aid Society of Massachusetts. This Report was read at the desk by its author, a course to which the Senate was not accustomed. Mr. Collamer presented a Minority Report, which he read at the desk also. As soon as the reading was over, Mr. Sumner took the floor and made the following remarks.

MR. PRESIDENT,--In those two reports the whole subject is presented characteristically on both sides. In the report of the majority the true issue is smothered; in that of the minority the true issue stands forth as a pillar of fire to guide the country. The first proceeds from four Senators; but against it I fearlessly put that report signed by a single Senator [Mr. Collamer], to whom I offer my thanks for this service. Let the two go abroad together. Error is harmless, while reason is left free to combat it.

I have no desire to precipitate the debate on this important question, under which the country already shakes from side to side, and which threatens to scatter from its folds civil war. Nor, indeed, am I disposed to enter upon it, until I have the opportunity of seeing in print the elaborate documents which have been read to-day. But I cannot allow the subject to pass away, even for this hour, without repelling at once, distinctly and unequivocally, the assault which has been made upon the Emigrant Aid Company of Massachusetts. That Company has done nothing for which it can be condemned under the laws and Constitution of the land. These it has not offended in letter or spirit,--not in the slightest letter, nor in the remotest spirit. It is true, it has sent men to Kansas; and had it not a right to send them? It is true, I trust, that its agents love Freedom and hate Slavery; and have they not a right to do so? Their offence has this extent, and no more. Sir, to the whole arraignment of that Company, in the report of the Committee on Territories, I now for them plead, “Not guilty!” and confidently appeal to the country for that honorable acquittal which is due to their patriot services.

The outrages in Kansas are vindicated or extenuated by the alleged misconduct of the Emigrant Aid Company. Very well, Sir; a bad cause is naturally staked on untenable ground. You cannot show the misconduct. Any such allegation will fail. And you now begin your game with loaded dice.

UNION TO SAVE KANSAS, AND UNION TO SAVE OURSELVES.

LETTER TO A NEW YORK COMMITTEE, APRIL 28, 1856.

SENATE CHAMBER, April 28, 1856.