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.