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.