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—