PRIVY COUNCIL ANSWERS ARGUMENT THAT TREATY SUPREMACY IS NECESSARY

It is argued that the treaty supremacy clause is necessary in a federal state and that the repeal of this provision would deprive the United States of the sovereign power of enforcing some of its treaty obligations. Substantially the same argument was made before the Judicial Committee of the Privy Council in the Canadian case. It was met by the holding of the Privy Council as follows: "In a federal state where legislative authority is limited by a constitutional document, or is divided up between different legislatures. . . the obligations imposed by the treaty may have to be performed, if at all, by several legislaures, and the executive have the task of obtaining the legislative assent not of the one parliament to whom they may be responsible but possibly of several parliaments to whom they stand in no direct relation.

It must not be thought [the Privy Council continued] that the result of this decision is that Canada is incompetent to legislate in performance of treaty obligations. In totality of legislative powers, Dominion and Provincial together. she is fully equipped. But the legislative powers remain distributed. When Canada incurs treaty ogligations dealing with Provincial classes of subjects, the exercise of the totality of powers requires cooperation between Dominion and the Provinces."

The observations of the Privy Council on the expanding position of Canada in the field of external affairs seem apposite to the conditions that have now made necessary a constitutional amendment to limit the treatymaking power of the United States in the interest of preserving the proper balance between federal and state powers in internal affairs: "While the ship of state now, sails on larger ventures and into foreign waters she still retains the water-tight compartments which are an essential part of her original structure."

If treaties are self-executing in the United tSates, but require legislation before they can be enforced by the other contracting parties, then situations develop where treaty provisions may be binding in the United States and enforcible in its courts but not in the courts of the other contracting parties unless and until such parties enact the necessary enabling legislation. This defect in our treaty law has been pointed out by Judge Manley O. Hudson in "The Factor Case and Double Criminality in Extradition," 28 Am. J. Intl. Law 276. This case was reported in 290 U. S. 276. Judge Hudson suggested that "Future treaties of the United States might be drawn to avoid this situation." The constitutional amendment proposed by the American Bar Association proposes to avoid this situation by placing treaty law in the United States on the same plane of equality with treaty law in other countries, and thus restore the United States to the equality in this respect with all other members of the family of nations to which it is entitled.

PROPOSED AMENDMENT WOULD NOT IMPAIR FOREIGN RELATIONS

It is not the purpose of the proposed amendment to curtail any of the power of the United States to perform its obligations as the sole and exclusive representative of the people of the nation in all matters appropriate to the conduct of the foreign relations of the Government. It is the purpose of the amendment to emphasize that all legislative powers granted by the people "shall be vested in a Congress of the United States." (Article I, Section 1 of the Constitution.) The proposed amendment is intended to make it impossible hereafter for any federal or state court to hold that a foreign nation can participate in legislating for the people of the United States under the treatymaking clauses of their Constitution.

It is objected to the final clause of the proposed amendment that in limiting Congress to its delegated powers in the absence of a treaty the United States will be unable to continue to make treaties on many subjects it has been empowered to make under the treaty supremacy clause of Article VI; but it cannot be demonstrated that the treaty supremacy clause was intended to supersede the supremacy of congressional legislation in matters pertaining to foreign affairs. It is well established by judicial interpretation that a law of Congress may modify or terminate a treaty as internal law. There seems to be no repugnancy in a proposal that a law of Congress shall also be required before a treaty becomes effective as internal law.

The power to regulate commerce with foreign nations vests in Congress legislative power to implement all treaties coming within the broad scope of this term. It has been interpreted by the Supreme Court to be equivalent to the phrase "intercourse for the purpose of trade." Carter v. Carter Coal Co., 298 U. S. 238

(1936). All treaties of friendship, commerce, and navigation are in this category. They compromise the most numerous class of treaties negotiated by any nation. They include consular conventions whenever this field is dealth with separately from general commercial treaties. Consuls are essentially trade representatives. Any conflicts between such treaties and the local law would be a proper subject for the consideration of Congress in passing its enabling legislation. They might ultimately be resolved by the courts as had been the case heretofore. Under the proposed amendment, however, the courts would be obliged to be guided in their decisions by a thorough investigation and determination of the distribution of legislative power between the Federal Government and the states under the Constitution.

The great expansion of federal power under the commerce clause at the expense of the police powers of the states and also under the congressional power to provide for the common defense and promote the general welfare, has recently been the subject of a series of lectures at the Harvard Law School by a former distinguished Associate Justice of the Supreme Court of the United States. See The Court and the Constitution, by Owen J. Roberts (Harvard University Press, 1951). The Court would seem to be required to place the same liberal interpretations upon these clauses in passing upon the constitutionality of legislation by Congress to make treaties effective as internal law as it has done in deciding the same questions involving the power of Congress to regulate commerce among the several states.

The jurisdiction of Congress to enact legislation to define and punish offenses against the law of nations in the absence of treaty obligations is specifically conferred in Article I, Section 8, of the Constitution. It would unduly prolong this article to discuss all the particular powers delegated to Congress by that section. It concludes with a general grant of power "To make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this Constitution in the Government of the United States, or in any department or officer thereof." This general grant now includes the treatymaking power, but under the proposed constitutional amendment that power must be excluded from our discussion.

"The National Government is invested with power over the foreign relations of the country, war, peace, and negotiations and intercourse with foreign nations, all of which are forbidden to the State Governments. It has jurisdiction of all of these general subjects of legislation and sovereignty which affect the interests of the whole people equally and alike, and which require uniformity of regulations and laws." Chinese Exclusion Case, 130 U. S. 581 (1889). The exclusive necessity of employing the treaty method in exercising this power, jurisdiction and sovereignty has been negatived by the long established practice of the Federal Government.

To Congress is specifically delegated the power to declare war, but not to make peace. The constitutional power of Congress to end a state of war by joint resolution is no longer open to question. When the Treaty of Versailles failed of approval by the Senate in 1920, Congress ended the state of war with Germany by a joint resolution approved by President Harding on July 2, 1921. The war with Austria was ended in the same manner. In both cases treaties were eventually concluded with those governments, but they could not have retroactive effect to confer legislative power on Congress. Again as recently as October 19, 1951, the President approved a joint resolution terminating the state of war between the United States and Germany, declared by Congress following the attack on Pearl Harbor, 65 Stat. 451. Up to the present writing no treaty of peace has been concluded with Germany. Nevertheless, our state and federal courts will be bound to give full force and effect to the joint resolution in all cases coming within their appropriate jurisdictions.

When the treaty of April 12, 1844, for the annexation of Texas was not advised and consented to by the Senate, the annexation was accomplished by a joint resolution of March 1, 1845, 5 Stat. 797. Hawaii was annexed by the United States by a joint resolution of July 7, 1898, 30 Stat. 750, when it became evident that the treaty of annexation signed June 16, 1897, would not be approved by the Senate. Notwithstanding the rejection of the Treaty of Versailles by the Senate in 1920, Congress by joint resolution of June 19, 1934, 48 Stat. 1182, authorized the President to accept membership in the International Labor Organization established under Part XIII of the Versailles Treaty.

Beginning with an Act of February 20, 1792, 1 Stat. 239, Congress has authorized the Postmaster General to make postal arrangements with foreign countries without any requirement for submission to the Senate; a National Quarantine

Law was enacted in 1878, 21 Stat. 37, under which subsequent sanitary conventions were enforced; an Act of Congress of February 9, 1922, authorized the World War Foreign Debt Commission to conclude agreements with foreign countries subject to the approval of the President and Congress but not subject to ratification by the Senate.

"The delegation by the Constitution to the President and the Senate of the power to make treaties does not exhaust the power of the United States over international relations. The will of the nation in this domain may be expressed through other acts than treaties *** There is no inconsistency between the authority of the President and the Senate to regulate foreign relations through agreements in the form of treaties and the power of the President and Congress to deal with matters of foreign policy through legislative action. Which of the two procedures shall be employed in a given case is a matter of practical convenience or political expediency rather than of constitutional or international law. [Acts and Joint Resolutions of Congress as Substitutes for Treaties, by James W. Garner, American Journal of International Law, 1929, pp. 482-488; see also Constitutional Procedures for International Agreement by the United States, Charles Cheney Hyde, in Proceedings of American Society of International Law, 1937, pp. 45-55, and Enforcement of Administrative Treaties in the United States, by Henry Reiff, American Journal of International Law, Vol. 34, pp. 661-679.]"

Fears that the adoption of the proposed constitutional amendment would deprive the United States of the power to conclude treaties for the mutual surrender of fugitives from justice are grounded in an inadequate understanding of the history of extradition in this country. At international law treaties are not required. Extradition is founded on reciprocity.

The Constitution provides for the delivery of fugitives between the several states (Article IV, Section 2) but the question whether the power of international extradition was vested in the states or the Federal Government was long in doubt. The Jay Treaty of 1794, stipulating for extradition for murder or forgery, expired in 1807. For the next thirty-five years the United States had no treaty relations on extradition. During that period the Federal Government declined to act upon requests of the states to apply to foreign governments for the surrender of fugitives, and it referred to the states for their action the requests of foreign governments for the delivery of fugitives found therein. The President and Secretary of State held that they lacked power to act for the nation in matters of international extradition in the absence of treaty or Act of Congress. New York State adopted an act in 1822 conferring power upon its Governor to act internationally. It remained in operation until 1839 when Governor William H. Seward, later Secretary of State in President Lincoln's Cabinet, declined to act under the state law, on the ground that international extradition was "intimately connected with the foreign relations of the United States, and should be exclusively under the control of the General Government”. Moore, Digest of International Law, Volume IV, 242. In the same year the Governor of Vermont issued a warrant for the surrender of a fugitive to Canada. On a writ of habeas corpus the case reached the Supreme Court of the United States, which declared that the power of extradition belonged "exclusively to the Federal Government", and that the action of the Governor of Vermont was "repugnant to the Constitution of the United States." Holmes v. Jennison, 14 Pet. 540 (1840). See the full discussion of this case by John Bassett Moore in Treatise on Extradition (1891) Volume I, pages 55-59. The following year the United States concluded an extradition treaty with Great Britain and another with France in 1843.

The first federal extradition statute was adopted in 1848. Its purpose was to regulate extradition procedure in the United States and put the surrender of fugitives to foreign governments on a completely recriprocal basis. It was made applicable to extradition treaties already concluded and to future treaties. In view of this history, it would be overemphasizing the importance of treatymaking in American constitutional law to hold that Congress would not have the power to enact legislation making extradition treaties internal law under the proposed constitutional amendment. President Lincoln, with Mr. Seward as his Secretary of State, surrendered a fugitive to Spain in 1864 in the absence of a treaty with that country. Mr. Seward defended the President's action in a letter of June 24, 1864, to the Chairman of the Judiciary Committee of the House of Representatives. He asserted that "the true position of the national obligation and authority for the extradition of criminals" may be found "defined and established by the law of nations" and that "this obligation and authority,

under the Constitution of the United States, and in the absence of treaty stipulalations and statutory enactment, rests with the President of the United States". Arguelles Case, Moore, Digest of International Law, Volume IV, pages 249–250. It is common practice of the Department of State to request the surrender of fugitives by governments with which we have no extradition treaties. Judge Moore, the most distinguished authority on the subject, says: "In the United States the general opinion has been, and practice has been in accordance with it, that in the absence of a conventional or legislative provision, there is no authority vested in any department of the government to seize a criminal fugitive and surrender him to a foreign power." Judge Moore's reference to a convention or legislation as alternative provisions has been emphasized by the writer.

Similar fears have been expressed that the adoption of the proposed constitutional amendment would prevent the United States from entering into so-called treaties of judicial assistance because Congress would lack power to legislate in the absence of such treaties. The House of Delegates of the American Bar Association on September 20, 1950, adopted a resolution urging the appointment of a presidential committee to draft treaties and take other advisable action "to codify and improve international procedures in civil and criminal matters. 75 A. B. A. Rep. (1950) page 120. The report of the Committee on International Judicial Cooperation of the Section of International and Comparable Law, submitted to the last Annual Meeting of the Association at New York in September 1951, stated that "The Departments of State and Justice have approved the recommendation in principle. *** However, substantial progress with a plan of organization has been made."

The amendment to the Constitution now recommended by the American Bar Association would not have any effect upon the power of Congress to legislate on this subject in the absence of a treaty, certainly so far as the federal courts are concerned. Federal legislation of this nature is already on the statute books in Title 28 of the United States Code. If it was the intention of the Association's resolution of September 20, 1950, to include state courts within the mutual advantages and obligations of the suggested treaties, any constitutional difficulties might be overcome by drafting the treaties on a reciprocal internal state basis. That is the regular procedure in Great Britain, which does not undertake to enforce treaties affecting the laws of the dominions, colonies, possessions or protectorates without their consent. A uniform reservation to this effect is inserted in British treaties of this character. Phraseology typical of such reservations was embodied in the Draft Convention Relating to Civil Procedure Prepared by the Committee Appointed by the Lord Chancellor in 1919. It reads: "This convention shall not apply to any of the Dominions, Colonies, or Protectorates of either contracting party: but either contracting party may at any time give notice of accession to this convention on behalf of such Dominion, Colony, Possession, or Protectorate, and this convention shall accordingly apply to such Dominion, Colony, Possession, or Protectorate on the expiry of six months from the date of such notice. Any Dominion, Colony, Possession, or Protectorate on behalf of which such notice has been given may withdraw from this convention on giving six months' notice." [Harvard Research Draft on Judicial Assistance, printed in American Journal of International Law, Supplement, Volume 33, page 143.]

Similar reservations are attached to British treaties involving criminal law. They cover such subjects as extradition, circulation of obscene publications, traffic in women and children.

Judge Manley O. Hudson, in discussing extradition treaties in the municipal law of federal states, contends that the principle of internal state reciprocity prevails in applying the requirement of double criminality. "If it be admitted that the act charged must have been made criminal by the law of the requesting state, it would seem to be important, on general principles, apart from their application in particular treaties, that this should be the law prevailing in that part of the territories of the requesting state in which the accused will be tried if surrendered. * * * A long course of action by the governments and a fairly consistent course of decision by American and British courts are to this effect." He adds: "A similar problem arises in various European states, which, if not strictly federal states, have nevertheless different systems of criminal law in different parts of their territories. Hence, statements of the principle of double criminality made in treaties include not infrequently a specification as to the law of the particular part of the national territory which may be involved." (Manley O. Hudson, The Factor Case and Double Criminality in Extradition, 28 Am. Jour. Intl. Law 274, at 286-287 (1934).)

Predictions of the supposedly harmful effects that might follow the adoption of the proposed amendment at the present time are predicated upon speculation as to the unfortunate consequences that might have resulted for the nation in its infancy had the treaty supremacy clause not been incorporated in the Constitution to prevent the states from confiscating the British debts in violation of the stipulation to this effect in the Treaty of Peace of 1783. It is conceded that this was the principal purpose of the clause. The fallacy of the speculative argument is demonstrated by what actually happened to the payment of the British debts under the clause. "The fact that some of the States, either before or after the coming into effect of this provision, did obstruct the collection of debts due to British subjects during the war, made it necessary for the United States, some years later, to enter into an arrangement with Great Britain for the settlement of the debts directly between the two nations." (Edgar Turlington, "Treatment of Enemy Property in the United States before the World War," 22 Am. Jour. Intl. Law 274 (1928). Writing on the same subject, John Bassett Moore said that the decision of the Supreme Court holding the state confiscatory statutes to be invalid (Ware v. Hylton, 1796, 3 Dallas, 199) under the treaty supremacy clause was "of little benefit to the creditors. Owing to lapse of time, and to intervening deaths, financial failures and loss of proofs, the judicial remedy against the debtors had become practically worthless; and, under a treaty signed on January 8, 1802, the United States paid Great Britain the sum of £600,000, or $3,000,000, with which to compensate the creditors for their losses." International Law and Some Current Illusions (New York: The Macmillan Company, 1924), 14-15. The principle of the immunity from confiscation of private enemy property on land, including debts, has been abandoned in the peace treaties and most of the national legislation on the subject following the two World Wars.

This article in support of the constitutional amendment proposed by the American Bar Association is not intended to be in any sense an argument against the proper exercise of the treatymaking power of the United States, or to advocate the use of alternative methods in the conduct of our foreign relations. It is intended to demonstrate that Congress would have the power to enact legislation to make effective as internal law treaties on subjects of external regulation over which the Federal Government is vested with power to represent the states. Upon the adoption of the proposed amendment, the Congress, and not the treatymaking power, will determine whether the terms of the proposed treaty should be binding upon the states without their consent. Such questions will be restored to their proper sphere of decision under the Constitution of the United States in which foreign nations have no proper concern. It will make it impossible for the courts or the treatymaking power to ignore the spirit of the general reservation contained in Article 2, Paragraph 7, of the Charter of the United Nations that nothing contained in it shall authorize intervention "in matters which are essentially within the domestic jurisdiction of any state."

Mr. FINCH. Now, at this point I should like again to break my chronological statement and to read a section of the memorandum that Mr. Dulles read here on the 6th of April, at the top of page 7, entitled "Senate Joint Resolution 43."

Now, Senate Joint Resolution 43 embodies the proposal of the American Bar Association. This paragraph reads:

Senate Joint Resolution 43 which follows the language proposed by a committee of the American Bar Association, contains a further provision. This would require that no treaty shall be effective in any field in which Congress in the absence of a treaty cannot legislate. This would create a no-man's land in foreign affairs. It would require the concurrence of all 48 States to make effective such common treaties of friendship, commerce and navigation, extradition, reciprocal inheritance taxation, migratory birds, collection of foreign debts, and status of foreign troops. In this field, the foreign affairs of our country would not speak with one voice, but with 49.

The primary objective of the framers of our Constitution in this respect would be defeated.

Mr. Chairman and Senators, I should like to submit if that is the only argument that can be made against Senate Joint Resolution 43, I think we might as well not bother about the objections to that resolution any longer.