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. | Article | Vol. of Laws. | Pages. |
|---|---|---|---|---|
| France | 24 June, 1822 | 7 | 8 | 280 |
| ” | 9 Nov., 1843 | 6 | 8 | 582 |
| ” | 23 Feb., 1853 | 13 | 10 | 999 |
| Denmark | 26 April, 1826 | 11 | 8 | 342 |
| Sweden and Norway | 4 July, 1827 | 19 | 8 | 356 |
| Great Britain | 6 August, 1827 | 2 | 8 | 360 |
| ” | 6 August, 1827 | 2 | 8 | 362 |
| ” | 9 August, 1842 | 11 | 8 | 577 |
| ” | 15 Dec., 1848 | 22 | 9 | 970 |
| ” | 5 June, 1854 | 5 | 10 | 1092 |
| Hanseatic Republics | 20 Dec., 1827 | 10 | 8 | 370 |
| ” | 30 April, 1852 | 2 | 10 | 962 |
| Prussia | 1 May, 1828 | 15 | 8 | 386 |
| ” | 16 June, 1852 | 5 | 10 | 967 |
| Brazil | 12 Dec., 1828 | 33 | 8 | 397 |
| Austria | 27 August, 1829 | 12 | 8 | 401 |
| ” | 8 May, 1848 | 5 | 9 | 947 |
| Mexico | 5 April, 1831 | 34 | 8 | 426 |
| ” | 2 Feb., 1848 | 17 | 9 | 935 |
| Chile | 16 May, 1832 | 31 | 8 | 440 |
| Russia | 6-18 Dec., 1832 | 12 | 8 | 450 |
| Venezuela | 20 Jan., 1836 | 34 | 8 | 482 |
| Morocco | 16 Sept., 1836 | 25 | 8 | 487 |
| Peru-Bolivian Confed’n | 30 Nov., 1836 | 30 | 8 | 495 |
| Greece | 10-22 Dec., 1837 | 17 | 8 | 506 |
| Sardinia | 26 Nov., 1838 | 19 | 8 | 520 |
| Netherlands | 19 Jan., 1839 | 6 | 8 | 526 |
| ” | 26 August, 1852 | 6 | 10 | 985 |
| ” | 22 Jan., 1855 | 15 | 10 | 1156 |
| Ecuador | 13 June, 1839 | 35 | 8 | 550 |
| Hanover | 20 May, 1840 | 9 | 8 | 558 |
| ” | 10 June, 1846 | 11 | 9 | 866 |
| ” | 18 Jan., 1855 | 5 | 10 | 1141 |
| Portugal | 26 August, 1840 | 14 | 8 | 568 |
| New Granada | 6 March, 1844 | 11 | 8 | 586 |
| ” | 12 Dec., 1846 | 35 | 9 | 899 |
| Belgium | 10 Nov., 1845 | 19 | 8 | 612 |
| Two Sicilies | 1 Dec., 1845 | 12 | 9 | 841 |
| Swiss Confederation | 18 May, 1847 | 3 | 9 | 903 |
| Mecklenburg-Schwerin | 9 Dec., 1847 | 11 | 9 | 920 |
| Guatemala | 3 March, 1849 | 33 | 10 | 888 |
| Hawaiian Islands | 20 Dec., 1849 | 16 | 9 | 982 |
| San Salvador | 2 Jan., 1850 | 35 | 10 | 898 |
| Costa Rica | 10 July, 1851 | 13 | 10 | 924 |
| Peru | 26 July, 1851 | 40 | 10 | 946 |
| Bavaria | 12 Sept., 1853 | 5 | 10 | 1025 |
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?