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]