Now, let us take the reasons they give for alleging that this amendment would require the participation of all 48 States and the Federal Government also in treatymaking powers. I have already disposed of the subject of treaties of commerce and navigation as shown, that the gentlemen who have made that argument have not examined the State laws on the subject or they have not given full effect to the powers of the Federal Government under the interstate and foreign com merce clause of the Constitution.

Now, let us take the next subject, extradition. I referred to that yesterday afternoon but I would like to refer to it again. I have shown in this article in the American Bar Journal that the subject of extradition was one of doubtful jurisdiction during the early days of the Republic, and that some of the States claimed the right to have jurisdiction over international extradition, but that finally the Supreme Court of the United States, in a case which reached it from one of the cases coming up in the States, held that the subject of extradition was exclusively within the jurisdiction of the Federal Government.

At that time we had no treaty on the subject at all. A few years later after that decision, in 1848, in other words, over a hundred years ago, the Federal Government enacted a law on the subject of international extradition. That law is still on the statute books; it has been amended from time to time and there is nothing, by any stretch of the imagination in the proposal of the American Bar Association, by which anybody can argue that our amendment will repeal that law.

That law was made applicable to two extradition treaties we had made following the decision of the Supreme Court. Two treaties, one with France and one with Great Britain, and it was made applicable to all future extradition treaties.

Senator SMITH. Is there any doubt about the validity or effectiveness of that?

Mr. FINCH. Not in the world.

Senator SMITH. I did not think so but one of the witnesses seemed to think it was not effective. Someone testified to that effect.

Mr. FINCH. Those are the actual facts and I have given in that document the references. You can check me up and say I am wrong. Senator SMITH. It was not one of your students that said that yesterday.

Mr. FINCH. If he said that, I will mark him down in his record, if you can identify him and let me know his name.

Now, I would like to go further on this subject of extradition. This happens to be a subject which I handled myself in the State Department some years ago.

Treaties are not necessary in international law to bring about international extradition. John Bassett Moore, probably the greatest authority on this subject, says so, and in his work on extradition he says that in the United States extradition is dependent on treaty or legislation. He puts it in the alternative. And anybody that tries to argue with John Bassett Moore on this subject has a pretty hard task on his hand.

Senator BRICKER. We have a student of John Bassett Moore here, so he should be impressed by that.

Mr. FINCH. Furthermore, we have actually extradited without a treaty. In 1864, President Lincoln in the absence of any treaty with

Spain delivered up a fugitive named Arguelles, and when the legality of his action was questioned because we did not have a treaty with Spain, it was vigorously defended by none other than William H. Seward, Secretary of State, in a letter to the chairman of the House Committee on the Judiciary, I think. I have given the references in my article.

Mr. Seward happened to have been a Governor of New York before he became Secretary of State. The State of New York as early as 1822 had passed a statute authorizing the Governor of New York to render fugitives to foreign governments under the State law, and when Mr. Seward became Secretary of State he refused to execute the law.

Senator BRICKER. When he became Governor?

Mr. FINCH. When he became Governor he refused to execute the law. He said the State had nothing to do with the matter of extradition. He said it was a matter purely for the Federal Government. He refused to execute that law and later, the Supreme Court in Holmes v. Jennison, confirmed the views and said the matter of international extradition is solely within the jurisdiction of the Federal Government.

Anybody who puts in, as the State Department has done, that our amendment would prevent the United States from making extradition treaties simply does not know the history of that subject in the United States. I do not think they ought to come before this committee and try to tell this committee what we can or what we cannot do in the matter of international extradition when they haven't read the record on the subject.

Now, you take the next question: reciprocal inheritance taxation. That is included in the subject of real estate.

Migratory birds has been so much discussed here I won't discuss

that.

Senator WATKINS. What page are you on?

Mr. FINCH. I am reading from page 7 of Dulles' statement.

Let us take the next one, collection of foreign debts. I have also covered that in the article of the American Bar Journal and also talked about it in my testimony before this committee last year. That argument is that if the amendment of the American Bar Association is adopted we could not make any arrangement with reference to the collection of foreign debts without the consent of all 48 States of the Union. That is what they argue.

Now, what is the record on that? Following the World War on February 9, 1922, without any treaty involved at all in the matter, Congress created and authorized the World War Foreign Debt Commission to conclude agreements with foreign countries subject to the approval of the President, but not subject to the ratification of the Senate. Here was the assertion of the legislative power of the Congress over the subject of foreign debts without any reference at all to treaty.

Yet we have the State Department coming here and telling you Senators that if you pass this amendment, you cannot enter into arrangements on foreign debts except with the consent of the 48 States of the Union. No State of the Union was consulted in February 1922. It was a matter that Congress felt it had under its delegated

powers and I think it had under those powers, and nobody ever challenged it.

Then, the status of foreign troops. I will skip that for the present, but I am coming back to it. I wish to make the point here that in taking these positions, the Government officials who are intent upon keeping the treatymaking powers as it now stands, under which they can expand their own power and control, seem to regard the Congress itself as something less than a silent partner when we come to the conduct of the foreign relations of the Government. They just keep silent but when you need money you have to appropriate it, but in other respects the whole conduct of our international relations is in the hands of the President and the Senate acting as a treatymaking power.

Senator WATKINS. Do you not think that probably has been carried to an extreme? The executive department, as I remember the Constitution, says "with the advice and consent." I think Congress has become alive to the fact that it ought to get in on the advice end as well as the consent end.

Mr. FINCH. That is right.

Now I would like to read a statement from the Supreme Court in the Chinese Exclusion case. In that case the Court was not discussing the treatymaking power. It was discussing the power of Congress to abrogate a treaty. The Court said this:

The National Government is invested with power over the foreign relations of our country.

It says the National Government.

War, peace and negotiations and and intercourse with foreign nations, all of which are forbidden to the State government. It has jurisdiction of all those general subjects of legislation and sovereignty which affect the interests of the whole people equally and alike and which require uniformity of regulations and law.

That is the extent to which the National Government, including the Congress, has jurisdiction of matters affecting our international relations. It is true that the Congress cannot make a treaty, but a treaty in its real essence is nothing more than a written document by which we try to bind down some foreign nation to some contract or to some policy which has the approval of the National Government. It is simply an agency, an agency putting the document in writing so there can be no misunderstanding of what the agreement is between the two governments, and when you talk about the Government you include the whole Government, not a part.

Now, a previous witness, I think it was Mr. Tuttle, referred to the subject of narcotics and made a long argument that the adoption of the amendment proposed by the American Bar Association would prevent this Government from participating in the control of narcotics. I have also answered that argument, in previous testimony before this committee.

Mr. Tuttle referred to the fact that was based on the treatymaking power, the acts of Congress in passing a domestic law governing the growing of poppies in this country, but based upon the treaty power.

I took the trouble to look up that law last year when that same argument was made and again we have statements made by objecting witnesses who have not looked up the law. It was just made from their own emotional feelings in the matter without any basis of law.

An examination of the act of 1942 for the domestic control of production and distribution of the opium poppy, discloses that the purpose of the act was stated to be not only to discharge the international obligations of the United States under the narcotic treaties, but to "promote the public health and the general welfare, to regulate interstate and foreign commerce in opium poppies, and to safeguard the revenue derived from taxation of opium and opium products."

From that recitation of the act itself of the powers of Congress, it is perfectly obvious that it did not rest those powers solely on the treatymaking power.

Senator SMITH. What page is that?

Mr. FINCH. I am reading that from the bottom of pages 325 and 326 of this green book containing the testimony before this committee last year.

Now may I proceed with the main argument?

The CHAIRMAN. Yes.

Mr. FINCH. A curious criticism was made by representatives of the Association of the Bar of the City of New York in their testimony before this subcommittee on February 19. They envisioned an enemy invading the United States by way of Alaska and a Canadian motorized division being rushed to our aid through United States territory under an agreement with the President.

It was argued that unless and until Congress, under our proposed amendment, if it were adopted, passed a law making the agreement effective in this country, the Canadian Army would be subject to all the State laws forbidding the carrying of firearms, traffic regulations, and so forth.

I must say, Senator, I sat in amazement to listen to such a statement by people claiming to be qualified to testify on the subject. No situation like that could arise under the rules of international law.

Senator WATKINS. Will you give me the page you are reading from?

Mr. FINCH. I am on page 14.

And you must remember in all these subjects of international relations you are not only in the field of constitutional law, but you are in the field of international law which we as a member of family of nations are obliged to give respect to.

Under international law a friendly foreign army passing through this country by official permission would not be subject to either Federal or State jurisdiction unless there were conditions in the treaty or executive agreement to that effect, a highly improbable situation. The exemption from domestic jurisdiction of a foreign army passing through our territory is in the same category of sovereign immunities as the sovereign himself and his diplomatic representatives while in this country, and of his public ships of war in our waters. The reason for these immunities from territorial jurisdiction were stated by Chief Justice Marshall as follows:

One sovereign being in no respect amenable to another, and being bound by obligations of the highest character not to degrade the dignity of his nation, by placing himself or his sovereign rights within the jurisdiction of another. can be supposed to enter a foreign territory only under an express license, or in the confidence that the immunity depending on his independent sovereign station, though not expressly stipulated, are reserved by implication and will be extended to him.

Mr. Chief Justice Marshall made that statement in the very celebrated Exchange v. McFadden case.

You will find that case as one of the cases I teach my students in the class on International Law at the Georgetown School of Foreign Commerce.

For further information on this subject and to bring you up to date, those who are interested in the matter should read an article ́in the American Journal of International Law, published in 1942, volume 36, pages 539 to 567, entitled "Jurisdiction Over Friendly Foreign Armed Forces," by Col. Archibald King, a very distinguished member of the Judge Advocate General's Department of the United States Army.

Senator SMITH. Mr. Finch, how would it be determined what was a friendly army of a friendly power, because we are going to be asked that question by somebody, I know?

Mr. FINCH. Of course, if you invite an army to come through, you would not invite an enemy army.

Senator SMITH. It is predicated on the basis, then, that the Executive would invite the friendly army in?

Mr. FINCH. In the hypothetical case that these gentlemen gave, they said it was there by invitation of the President.

Senator SMITH. The question would arise, why would the army 'of a friendly power be in this country?

Mr. FINCH. In this case these gentlemen put up a hypothetical situation that we were being invaded from Alaska and that the President in order to help us get up a quick defense before it could get down here, asked Canada to send us a motorized division in order to help us defend, and this division to get here quicker came down through the United States.

Then this gentleman said if you adopt that amendment you defeat attempt of the President to defend the United States.

The CHAIRMAN. Your argument is that they are here by official permission?

Mr. FINCH. Yes.

Now Mr. Nash talked about the stationing of troops in the United States under certain of our agreements, under the defense agreements, and foreign troops being sent here for training and what would be the law governing those troops.

Now, I have not had a chance to write a brief on that, but I should say offhand the law would be this: As long as foreign troops are over here as organized bodies under the command of their own officers, this rule cited by Chief Justice Marshall would apply.

If troops are permanently stationed and garrisoned here, and still under the control of their own commanders, the rule would probably also apply.

If they come here as student officers, not under the command of their own people, but going to some of our military colleges, or somewhere else, they would certainly be under the same rules as our own soldiers and officers at those colleges would be governed by.

If Congress passes a law authorizing some foreign cadet to go to West Point, you would not say he carried immunity from our laws there, but he would be governed by the rules governing West Point cadets.