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THE LATE HON. EDWARD EVERETT.
TELEGRAPHIC DESPATCH TO JOINT COMMITTEE OF THE LEGISLATURE OF MASSACHUSETTS, JANUARY 16, 1865.
BOSTON, January 16, 1865.
To HON. CHARLES SUMNER.
A Joint Committee of the Legislature invoke you to deliver a Eulogy upon Hon. Edward Everett before the State authorities at such time as meets your convenience during the session of the Legislature. Please answer at once by telegraph.
Mr. Sumner answered by telegraph as follows.
HARING the general grief in the loss of a rare and pure patriot, I regret that public duties here seem to prevent me from uniting with the Legislature in the honors they propose to his memory. I am grateful to the Joint Committee for the opportunity they offer me of commemorating a great example of genius, learning, and eloquence, consecrated to patriotic service; but the probable session of the Senate and the exigencies of public business (which are always my first duty) make me fear that I cannot respond to their summons. I mention with hesitation, but to explain the rule which is with me obligatory, that, during my long term in the Senate, I have never left my seat for a single day, except while an invalid. Be good enough to accept my thanks and sympathies.
TERMINATION OF TREATIES BY NOTICE.
REMARKS IN THE SENATE, ON A JOINT RESOLUTION TO TERMINATE THE TREATY OF 1817 REGULATING THE NAVAL FORCE ON THE LAKES, JANUARY 18, 1865.
JANUARY 18th, the Senate considered a joint resolution passed by the House of Representatives, for the termination of the treaty between the United States and Great Britain regulating the naval force on the Lakes.
The resolution, as it was passed by the House of Representatives, recited, that the Treaty of 1817, as to the naval force upon the Lakes, was designed as a temporary arrangement only, and, although equal and just at the time it was made, has become greatly unequal through the construction by Great Britain of sundry ship-canals, - that the vast interests of commerce upon the Northwestern Lakes, and the security of cities and towns situated on their American borders, manifestly require the establishment of one or more navy-yards wherein ships may be fitted and prepared for naval warfare, and that the United States Government, unlike that of Great Britain, is destitute of ship-canals for the transmission of gunboats from the Atlantic Ocean to the Western Lakes, — and therefore proposed to direct the President of the United States to give notice to the Government of Great Britain that it is the wish and intention of the Government of the United States to terminate the arrangement of 1817, in respect to the naval force upon the Lakes, at the end of six months from and after giving the notice.
Mr. Sumner, from the Committee on Foreign Relations, reported the following substitute.
"JOINT RESOLUTION to terminate the Treaty of 1817, regulating the Naval Force on the Lakes.
"Whereas the United States, of the one part, and the United Kingdom of Great Britain and Ireland, of the other part, by a treaty bearing date April, 1817, have regulated the naval force upon the Lakes, and it was further provided, that, if either party should hereafter be desirous of annulling this
stipulation, and should give notice to that effect to the other party, it shall cease to be binding after the expiration of six months from the date of such notice'; and whereas the peace of our frontier is now endangered by hostile expeditions against the commerce of the Lakes, and by other acts of lawless persons, which the naval force of the two countries allowed by the existing treaty may be insufficient to prevent; and whereas, further, the President of the United States has proceeded to give the notice required for the termination of the treaty by a communication which took effect on the 23d November, 1864: Therefore,
"Be it resolved by the Senate and House of Representatives of the United States of America in Congress assembled, That the notice given by the President of the United States to the Government of Great Britain and Ireland to terminate the Treaty of 1817, regulating the naval force upon the Lakes, is hereby adopted and ratified, as if the same had been authorized by Congress."
The substitute was adopted, and the question was on the passage of the resolution as amended.
As appears from the amended resolution, the President had already given the notice for the termination of the treaty.
Mr. Davis, of Kentucky, opposed the resolution, on the ground that the notice to terminate a treaty can be given only by Congress, that the President had no more power to give the notice than the Judiciary, and that his interference with the legislative power ought to be condemned, instead of approved by adopting it.
Mr. Summer replied, that the difference between the Senator and the Committee was of form; and he proceeded to read a communication, bearing date November 23, 1864, from Mr. Adams to Earl Russell, setting forth the grievances on our northern frontier, and giving formal notice, that, "in conformity with the treaty reservation of the right, at the expiration of six months from the date of this note the United States will deem themselves at liberty to increase the naval armament upon the Lakes, if in their judgment the condition of affairs in that quarter shall then require it." On this note was minuted: "Delivered at the Foreign Office at fifteen minutes past six o'clock, P. M." In considering the validity of the notice by the President, he referred to authorities, showing that a treaty, like a law, could be repealed only by the legislative power,1 and argued that notice to terminate it must be given by the same power. Mr. Sumner further said :—
1 Story, Commentaries on the Constitution, Vol. II. § 1838; Ware v. Hylton, 3 Dallas, R, 261. See also, ante, Speech on the Abrogation of Treaties, Vol. IV. pp. 102, 103.
UT the Senator from Kentucky tells us that the original defect in the notice by the President is of such a character that it cannot be cured by any subsequent ratification; and he proceeds to present what he will excuse me if I call imaginary cases, which I think could hardly occur, and are widely different from that under consideration. I express no opinion on the cases he does present, as, for instance, if the President, during the recess of Congress, should undertake to involve the country in war. Let that case take care of itself, when it arises for judgment. The case before us is more simple, and is one with regard to which there are no private rights or interests. It is a domestic question between Congress and the President. He has given the notice. As regards the Government of Great Britain, that notice, I cannot doubt, is perfectly valid. That Government will never call it in question. For our own security, and that our precedents may conform to just principles, we now propose by formal Act of Congress to throw over this notice of the President the shield of Congressional sanction; and the question is, Can this be done? Can Congress, by an act of ratification, impart to the original notice of the President that power and character which, without subsequent ratification, it would not have? On that point I content myself with reading the authoritative words of the Supreme Court of the United States in the decisions known as the Prize Cases. There the Court express themselves as follows.
"Without admitting that such an act was necessary under the circumstances, it is plain, that, if the President had in any manner assumed powers which it was necessary
should have the authority or sanction of Congress, that, on the well-known principle of law, 'Omnis ratihabitio retrotrahitur et mandato æquiparatur,' this ratification has operated to perfectly cure the defect. In the case of Brown v. United States, (8 Cranch, 131, 132, 133,) Mr. Justice Story treats of this subject, and cites numerous authorities, to which we may refer, to prove this position, and concludes: 'I am perfectly satisfied that no subject can legally commit hostilities or capture property of an enemy, when, either expressly or constructively, the sovereign has prohibited it. But suppose he does, I would ask if the sovereign may not ratify his proceedings, and thus, by a retroactive operation, give validity to them?""1
All now proposed is that Congress shall ratify the notice to the British Government, and by retroactive operation give validity to it.
Mr. President, if this concerned private rights,if, according to the language of the Senator from Kentucky, there were any question of meum and tuum,there might be force in his argument. But no private rights are involved, and there are no private individuals affected in any way by the proposed ratification of the notice already given. Therefore I put out of view that suggestion. It is, then, simply a question of power on the part of Congress, with no question of private rights.
I conclude that Congress has the power, and I put my conclusion on two distinct grounds. The first is the reason of the case, its common sense; for without this power I can imagine difficulties or embarrassments in the administration of government. I say the power
1 2 Black, R., 671.