Volume 5 — 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.

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 made.Date.ArticleVol. of Laws.Pages.

France24 June, 182278280

”9 Nov., 184368582

”23 Feb., 18531310999

Denmark26 April, 1826118342

Sweden and Norway4 July, 1827198356

Great Britain6 August, 182728360

”6 August, 182728362

”9 August, 1842118577

”15 Dec., 1848229970

”5 June, 18545101092

Hanseatic Republics20 Dec., 1827108370

”30 April, 1852210962

Prussia1 May, 1828158386

”16 June, 1852510967

Brazil12 Dec., 1828338397

Austria27 August, 1829128401

”8 May, 184859947

Mexico5 April, 1831348426

”2 Feb., 1848179935

Chile16 May, 1832318440

Russia6-18 Dec., 1832128450

Venezuela20 Jan., 1836348482

Morocco16 Sept., 1836258487

Peru-Bolivian Confed’n30 Nov., 1836308495

Greece10-22 Dec., 1837178506

Sardinia26 Nov., 1838198520

Netherlands19 Jan., 183968526

”26 August, 1852610985

”22 Jan., 185515101156

Ecuador13 June, 1839358550

Hanover20 May, 184098558

”10 June, 1846119866

”18 Jan., 18555101141

Portugal26 August, 1840148568

New Granada6 March, 1844118586

”12 Dec., 1846359899

Belgium10 Nov., 1845198612

Two Sicilies1 Dec., 1845129841

Swiss Confederation18 May, 184739903

Mecklenburg-Schwerin9 Dec., 1847119920

Guatemala3 March, 18493310888

Hawaiian Islands20 Dec., 1849169982

San Salvador2 Jan., 18503510898

Costa Rica10 July, 18511310924

Peru26 July, 18514010946

Bavaria12 Sept., 18535101025

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]