THIRTY-THIRD CONGRESS, SECOND SESSION.

February 8, 1855.

On the treaty with the Duke of Brunswick and Luneburg as to inheriting and acquiring property, Mr. Mason reported as follows: Resolved (two-thirds of the Senators present concurring), That the Senate advise and consent to the ratification of the convention between the United States of America and his highness the Duke of Brunswick and Luneburg, concluded at Washington the 21st day of August, 1854, with the following amendment, viz:

Article 1, line 5, after the word "other" insert the following: “Subject to the laws of the State or country where the domicil is or the property is found."

(Ex. Jour., vol. 9, p. 435.)

THIRTY-FOURTH CONGRESS, FIRST SESSION.

April 7, 1856.

[Senate Report No. 97.]

The Committee on Foreign Relations, to whom was referred the resolution of the Senate which is annexed, have had the same under consideration and now report:

The resolution is as follows:

Resolved, That the Committee on Foreign Relations be directed to consider the expediency of some act of legislation, having the concurrence of both Houses of Congress, by which the treaty with Denmark regulating the payment of Sound dues may be effectively abrogated in conformity with the requirements of the Constitution under which every treaty is a part of "the supreme law of the land," and in conformity with the practice of the Government in such cases, and especially to consider whether there be any defect in the notice which has been given which such legislation may be necessary to remedy.

The Senate, in executive session, on the 3d day of March last, adopted the following resolution, as to which the injunction of secrecy has been removed, viz:

Whereas by the fifth article of the general convention of friendship, commerce, and navigation between the United States of America and His Majesty the King of Denmark, concluded at Washington on the twenty sixth day of April, eighteen hundred and twenty-six, it is provided that

"Neither the vessels of the United States nor their cargoes shall, when they pass the Sound or the Belts, pay higher or other duties than those which are or may be paid by the most favored nation."

Which article has been construed into a concession on the part of the United States of the right on the part of the Government of Denmark to levy duties or tolls on such ships and cargoes burdensome and oppressive to the commerce of the United States in the Baltic Sea and in derogation of common right to the free navigation of open

seas.

And it being provided by the eleventh article of the said convention that after ten years from the date thereof either of the contracting parties should be at liberty to give notice to the other of its intention to terminate the same in the manner therein provided.

With a view, therefore, to relieve the commerce of the United States in the Baltic Sea from the duties or tolls aforesaid:

Resolved, That the President of the United States be, and he is hereby, authorized, at his discretion, to give to the Government of Denmark the notice required by the eleventh article of said general convention of the twenty-sixth day of April, eighteen hundred and twenty-six, for the termination of the same.

And the President, in his annual message at the commencement of the present session, informed Congress that

In pursuance of the authority conferred by a resolution of the Senate of the United States passed on the third of March last notice was given to Denmark on the 14th 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.

The convention spoken of in the message of the President and referred to in the resolution of the Senate is the "general convention of friendship, commerce, and navigation between the United States and His Majesty the King of Denmark," concluded at Washington on the 26th day of April, 1826, and promulgated by proclamation of the President on the 14th of October following. It is, as its title imports, a convention affecting commerce and navigation only between the two countries. No legislation was necessary to carry it into effect, nor has any been had.

The eleventh article of the convention is in the following words:

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 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.

The resolution of the Senate directing the committee to consider "the expediency of some act of legislation" by which the convention with Denmark may be "effectively abrogated in conformity with the requirements of the Constitution under which every treaty is a part of the 'supreme law of the land,"" would seem to direct this inquiry as interesting only to this Government or to its citizens-that is to say, the resolution is construed to assume that the notice which has been given is effectual to terminate the convention as between the two Governments when the period limited for such termination shall expire, and requires the committee to consider, as a domestic question, whether this convention, although abrogated, so far as Denmark is concerned, by the notice which has been given, yet, being "the supreme law of the land," some act of legislation by Congress may not be necessary to repeal or to annul it as such law. At least such is the construction placed by the committee on the resolution-that whether such legislation be necessary or no, as to Denmark the treaty is at an end when the time limited by the notice shall expire.

But as to this convention, and all others of like character, the committee are clear in the opinion that it is competent for the President and Senate, acting together, to terminate it in the manner prescribed by the eleventh article without the aid or intervention of legislation by Congress, and that when so terminated it is at an end to every intent, both as a contract between the Governments and as a law of the land. By the Constitution of the United States the whole power to make

treaties is vested in the President and Senate. In Article II, section 2, granting power to the President, it provides that

He shall have power, by and with the advice and consent of the Senate, to make treaties, provided two-thirds of the Senators present concur.

The question then presented by the resolution is, after a treaty is so made, where power is reserved by it to either party to terminate it on notice, can the treaty-making power give such notice, or is it such an exercise of political power as to require the concurrence of the House of Representatives through the forms of legislation?

A treaty between nations has its sanction, by international law, in the good faith of the contracting parties, added to which, in this country, it becomes "the supreme law of the land," and thus, to our own citizens, it is further clothed with the obligations of domestic law.

To violate a treaty, it is agreed among civilized nations, is the highest breach of national faith-which is national honor-and is justly declared to be sufficient cause of war; or if a treaty be violated or disregarded by one of the parties, the other may hold itself released from its obligation and act accordingly.

There is, of course, no provision to be found in the Constitution assigning power to any department of the Government to abrogate or annul existing treaties; and yet occasions may arise where the national honor as well as safety may require the Government to hold itself and its citizens released from treaty obligations by declaring such treaties. null. Such an occasion was presented in our relations with France in 1798, and it was then determined that Congress, by law, could, for the reasons assigned in the preamble to this act, declare the treaties with that power at an end.

It was a hostile act, as the preamble shows, and was looked upon at the time as the precursor of war, if not an act of war itself. There was no provision in the treaties with France to terminate them at the will of the contracting parties, and hence, as well to preserve the honor of the country as to resent the injurious conduct of France, there was no alternative but to declare war or to declare the treaties null.

So far as "the practice of the Government in such cases." (in the language of the resolution) is concerned, the committee can find but two instances in which treaties have been annulled or abrogated.

The first is the case referred to, of the treaties with France annulled in 1798.

The second is the case of the convention with England of August, 1827, annulled by notice provided for in the convention itself, similar to that in the treaty with Denmark now under consideration.

The mode in which the Government acted would, in both cases, seem to have been the same, inasmuch as both have the sanction of law-that is to say, in the case with France the treaties were, by law, declared no longer "legally obligatory on the Government or citizens of the United States;" and in the case with England Congress, by law, authorized the President to give the notice for the termination of the convention-yet the committee see the most clear and palpable distinction in the character of the two acts, though both are in the forms of legislation.

The treaties with France contained no reservation of right, to either party, to terminate them at their discretion. The convention with England did contain such reservation.

And whether it be competent or not to the President and Senate, as the treaty making-power, to abrogate treaties where no such right

is reserved (a question not necessary to be brought into discussion here) the committee entertain no doubt that where the right to terminate a treaty at discretion is reserved in the treaty itself such discretion resides in the President and Senate.

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 contracting party, se invito.

In the second, the case with England, they became null with the assent of that power previously given.

The committee do not consider it necessary to review "the practice of the Government," so far as it was evinced in the case of the French treaties, further than to show that it can not be invoked as a precedent in the matter now before them.

The relations between France and the United States were, at that time, of the most unfriendly character, as both the contemporaneous legislation and history show; the act annulling the treaties was one of a series of laws, passed at the same session, of hostile import. It was made to rest on the principle of universal law, that where a contract is violated by one party, the other is at liberty to regard it at an end as to both.

That act with its preamble is as follows:

Whereas, the treaties concluded between the United States and France have been repeatedly violated on the part of the French Government, and the just claims of the United States for reparation of the injuries so committed have been refused, and their attempts to negotiate an amicable adjustment of all complaints between the two nations have been repelled with indignity; and whereas, under authority of the French Government, there is yet pursued against the United States a system of predatory violence infracting the said treaties, and hostile to the rights of a free and independent nation:

Be it enacted by the Senate and House of Representatives of the United States in Congress assembled: That the United States are of right freed and exonerated from the stipulations of the treaties and 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.

It is thus manifested that the power here exercised was outside of any treaty stipulation, and while the committee are not called on to decide whether the President and Senate might not, by their independent action, have annulled these treaties, yet, as a power inherent in all Governments to protect themselves from aggression and wrong, or as one of a series of measures projected and carried into execution to disable an adversary and place him in the wrong in anticipation of war, the committee can well justify the action of the Government in the case cited, as a rightful exercise of the war power, without viewing it in any manner as a precedent establishing in Congress alone, and under any circumstances, the power to annul a treaty.

But, however this may be where the power annulling a treaty is exercised violentur or against a contracting party se invito, the case is very different where by original stipulation the treaty is to terminate by consent.

To avoid occasions of rupture it has been prudently stipulated in most of our later treaties, that after a certain period fixed by the treaty, either party should have power to terminate them on reasonable notice to the other.

Such were the provisions in the convention with England in 1827 providing for the joint occupation of Oregon by the subjects and citizens of the two powers and in the treaty with Denmark now under consideration.

In the case with England the notice to terminate the treaty was given by President Polk, pursuant to the provisions of a law passed at his recommendation, and it remains to be considered whether this is to be taken as evidence of a practice in the Government inconsistent with the power assumed by the President and the Senate in the case with Denmark.

The third article of the convention with England and the eleventh article of that with Denmark (which has been cited above) are substantially the same, and what is affirmed of the one may be affirmed of the other.

The committee consider that the legal effect of the eleventh article of the treaty with Denmark is that it remains a treaty of perfect obligation for a period of ten years; after that it becomes a treaty at will, subject to the condition only of twelve months' notice to terminate it. Who is to exercise this will on the part of the United States? The Constitution determines this. The whole power to bind the Government by treaty is vested in the President and Senate, two-thirds of the Senators present concurring. The treaty in question was created by the will of the treaty-making power, and it contained a reservation by which that will should be revoked or its exercise cease on a stipulated notice. It is thus the will of the treaty-making power which is the subject of revocation, and it follows that the revocation is incident to the will.

The President and Senate could certainly terminate this treaty or any other, with the consent of the opposite contracting party, by the negotiation of a new treaty in terms annulling it. And what is the present case but such consent, providing in advance for its termination on a contingency and without new negotiations.

The committee are thus satisfied that the notice authorized by the Senate, and given by the President to Denmark, was a proper exercise of the right reserved in the treaty, and that its effect will be to annul the treaty at the expiration of the time limited, both as regards the two Governments and the citizens and subjects of either.

Nor do the committee see that there is anything inconsistent with this in the exercise of a like power in the case of the convention with England concerning the joint occupation of Oregon pursuant to the authority of a law having the concurrence of the House of Representatives instead of an authority derived from the President and Senate alone. Although it be true, as an exercise of constitutional power, that the advice of the Senate alone is sufficient to enable the President to give the notice, it does not follow that the joint assent of the Senate and House of Representatives involves a denial of the separate power of the Senate.

In the case of the Oregon treaty President Polk recommended that both Houses should unite in authorizing the notice. It had become imperiously necessary to prevent collisions between the citizens and subjects of the two powers who were settled in that country, and which might involve their respective Governments, that the boundary should be determined. All efforts to adjust this by negotiation had failed whilst the joint occupation endured. And, in wise diplomacy, the President thought the minds of the two Governments would be more earnestly directed to this end if such joint occupation were terminated. To do this with the assent of both Houses of Congress was certainly calculated to make the act more impressive upon England then if authorized by the Senate alone, and especially as it was known that on the policy of giving the notice at all the Senate was by no means