Judge PHILLIPS. In the first place, we should not enter into a treaty if it is a treaty that ought not to be confirmed by the Senate. In the second place, and perhaps this will be more in line with the reaction I got, the lesson of history tells us that unlimited power in the agents of government is dangerous, and it is liable to be abused. It is my firm conviction, gentlemen, that after careful and painstaking consideration of the problem that only by proper restriction of the treaty-making power, through constitutional amendment, can we be sure that the rights of the States and the people and the precious liberties and fundamental freedoms of the individual citizen will be safeguarded and preserved.

Now Senator O'Conor suggested that I indicate what I would do with these two proposals.

Senator O'CONOR. Judge, we view that as very important because while assuming that we are in agreement on the purposes you will appreciate so well the difficulties that might tend as to the phraseology. Judge PHILLIPS. I will make my suggestion. In the first place I want to say this: I was chairman of the subcommittee on the draft of this constitutional amendment. We started out with the hope of carving out an area in which we would limit the treaty-making power. We struggled and struggled, and we thought it was not practically possible to do that, and we finally came around to where we said we would leave the Federal Government free to make any international contract it wanted to, but before it could affect the rights of the citizens of the United States and become internal law, imposing civil and criminal liability, it would have to be done by an act of Congress which the Congress could enact if there was not any treaty as the basis for congressional action.

So we made it broad. Now I respectfully suggest this for consideration, that for sections 1, 2, and 3 of Senator Bricker's draft the substitute the bar association proposes is that we believe that executive agreements can be dealt with under proper constitutional provisions by legislative action. In other words, we would substitute our draft for sections 1, 2, and 3 and for section 4 we would leave in the first sentence, "Executive agreements shall not be made in lieu of treaties," and strike the balance.

Senator FERGUSON. May I interrupt you there a moment, Judge? Judge PHILLIPS. Yes.

Senator FERGUSON. Who is going to determine what an executive agreement is? What does it mean?

Judge PHILLIPS. I would then add section 5. The fifth section would read:

Executive agreements shall not be made in lieu of treaties, and Congress shall have power to enforce this article by appropriate legislation.

Then I would add that Congress could deal with executive agreements by legislation and by such a grant of power.

Senator FERGUSON. But you know the present policy is that executive agreements are made without the knowledge of Congress and are kept secret.

Senator O'CONOR. If such an amendment were adopted by the Congress, the Congress would have abundant power to legislate and prevent secret agreements or agreements open or secret which transcended or were in excess; is that not so?

Judge PHILLIPS. Yes.

Senator FERGUSON. Would you read that section?

Judge PHILLIPS (reading):

Executive agreements shall not be made in lieu of treaties, and Congress shall have power to enforce this article by appropriate legislation.

Senator FERGUSON. Could we go further than to say that they have to be treaties? Then we would say that all matters have to be treaties. By that manner we could control it. You can say to the President you define your powers by the executive in this field, but all others must be by treaty.

Judge PHILLIPS. At least that conveys the thought, and of course the phraseology.

Senator FERGUSON. But you think the question of executive agreements is a grave problem?

Judge PHILLIPS. I do. I think the best way to handle it is to consider putting in at this time an interpretation of the Constitution. Senator FERGUSON. You do not subscribe to the belief that an executive agreement becomes the law of the land?

Judge PHILLIPS. No, I do not subscribe to it, it is not a treaty. Senator HENDRICKSON. Judge, last year when I was in Germany on a brief military mission I learned that Mr. McCloy was negotiating an executive agreement with the Government of Western Germany which would give the Government of Western Germany criminal and civil jurisdiction over our troops in Germany. Do you think that sort of executive agreement should be allowed at all?

Judge PHILLIPS. No; I do not think it should be allowed. I do not think it is a proper subject of an executive agreement.

Senator HENDRICKSON. That is a subject for treaty?

Judge PHILLIPS. It is a subject for treaty. I think executive agreements should be on matters of commerce and things like that. One great trouble is that in the old days the State Department with great care went into the treaties which we were going to propose and which the President entered into. Today these treaties are not being drafted by the State Department. It is true they have representatives. They are being drafted by a cosmopolitan group of many nations. We could not find out what genocide was, where it was, or what it was for a long time.

In fact, we were in favor of adopting a resolution saying that we were in favor and then we learned about it. We are not against genocide, but we are against provisions of this sort of treaty.

The CHAIRMAN. Thank you very much, Judge, for a very enlightening discourse.

Judge PHILLIPS. Thank you, gentlemen.

The CHAIRMAN. We will be glad at this time to hear from Mr. Frank Holman, past President of the American Bar Association.

STATEMENT OF FRANK E. HOLMAN, PAST PRESIDENT OF THE AMERICAN BAR ASSOCIATION, SEATTLE, WASH.

The CHAIRMAN. Will you state your full name, your residence, and official position, business, and occupation?

Mr. HOLMAN. Yes, sir.

The CHAIRMAN. I want to say that the committee is grateful for your patience and diligence and your kind act of coming here to help. us in the solution of this problem.

Mr. HOLMAN. It is a great pleasure to be here, sir.

By way of introduction, I wish to say that my name is Frank E. Holman, 66 years of age, a lawyer from Seattle. I have practiced law a little over 40 years. Because the issue has sometimes been suggested to me that this might have certain political aspects, at least in my efforts in connection with it, I would like to state for the record that I have never been active in politics; that actually I have never made a speech for a political candidate in my life.

I have only talked on constitutional law. I should also state, Senator McCarran, at the outset that although I have been a member of the American Bar Association for many years and active in its affairs during the last 10 years my views as expressed here are not necessarily the views of the American Bar Association or even of the committee on peace and law. I am not speaking officially for the association as have the members of the committee. I have already furnished your committee for your record with a written statement of views which I assume has arrived, one for the record and one for each member of the subcommittee.

I welcome this opportunity to make a few further observations regarding my interest and concern in this matter and to give you a few additional reasons for my belief that a constitutional amendment is necessary to protect American rights against what I call the dangers of treaty law. I use that phrase advisedly. I do not necessarily say treaty law, I say the dangers of treaty law.

Before proceeding to do this I would like to correct several typographical errors in the formal written statement heretofore presented to the committee. On page 26, the correct citation for the Cherokee Tobacco case is "11 Wallace" instead of "1 Wallace," and on the next line the citation for the case of Geofroy versus Riggs should be "133 U. S. 258" instead of "248."

The CHAIRMAN. Before you proceed, Mr. Holman, the chairman is called away and if Senator O'Conor will kindly take over you may proceed. I just want to express my gratitude for your coming here and to all the others for coming here to help us. We are dealing with a serious problem in which all of us are interested, and we need all the advice and counsel that we can receive.

When it is stated that the Senate will never vote for a bad treaty, I will confess that I voted for what I consider now to be a bad treaty that I will regret probably all the days of my life, and that was when I voted for the United Nations.

Mr. HOLMAN. By way of showing you my interest and concern in the matter, which I think is worth something to you perhaps as background, in February 1944, which was more than a year before the United Nations meeting in San Francisco, the American Bar Association became greatly concerned over some of the proposals which were then in the air, so to speak, with respect to the organization of the nations for peace and law.

The war had not ended, but the great design of an international organization was being discussed. The house of delegates did a very unusual thing. Ordinarily committees are appointed with the authorization of the board of governors and the president of the association, but the house of delegates, which as you know is a representative group of men, each bar association of the United States with a membership of 600 or more, sends a representative, so we represent

more in the house of delegates than would ordinarily be assumed by the presence there of about 260 men. We are under roll call.

It is not a case of a national convention meeting and talking the night before and then meeting the next morning. We are under roll call, and unless we respond as delegates of the local bars we may lose that privilege. So the house, recognizing that these oncoming proposals might have serious implications and in spite of the fact that one of our units of organization is the section on international comparative law, the house created this special committee which was known then as the committee for organization of the nations for peace and law.

That was in 1944, and Judge W. L. Ransom, of New York, was chairman, and Judge M. C. Sloss, of San Francisco, and myself were the western members of this initial committee. This committee's reports will show that it gave earnest support to the general idea of the proposals which eventuated in 1945 in the organization of the United Nations.

In other words, it started out with no initial prejudice against the purposes and ideas which went into the United Nations. In fact, Judge Ransom was present during all of the meetings in San Francisco as the official representative of the American Bar Association and there, with the representatives of other nonofficial organizations, made suggestions largely with respect to the statutes of the World Court.

Now, as finally drawn, articles 55 and 56 of the Charter pledged the member nations to "promote" higher standards of living, and I deem that word "promote" of some importance, and "universal respect for and observance of human rights and fundamental freedoms for all without distinction as to race, sex, language, or religion," and article 62 empowered but did not require the Economic and Social Council to "make recommendations for the purpose of promoting respect for and observance of economic rights and fundamental freedoms for all."

Now, article 7, chapter 1, of the Charter where the purposes and initial premises upon which the United Nations is based states:

Nothing contained in the present Charter shall authorize the United Nations to intervene in matters which are essentially within the domestic jurisdiction of any State or shall require the members to submit such matters to settlement under the present Charter.

Senator FERGUSON. Is that not the thing that led the Senate? I know that was debated on the floor while I was there.

Mr. HOLMAN. Sure.

Senator FERGUSON. That led them to the conclusion that there was no claim by those who were advocating the United Nations treaty that it was going to control our domestic jurisdiction.

Mr. HOLMAN. That is correct. Mr. Stettinius, who was our Secretary of State, put that in a letter, that the organization was not designed to interfere with domestic matters.

Senator FERGUSON. And as part of legislative history, I do not know whether it applies now in the interpretation of treaties by what we are learning about treaties as we go along, if the legislative act is ambiguous the legislative history is of importance?

Mr. HOLMAN. That is right.

Senator FERGUSON. Is that true if a treaty is ambiguous that the legislative history

Mr. HOLMAN. It depends on who wants to interpret that history. Senator FERGUSON. We do not have the local court to do it?

Mr. HOLMAN. That is right. Well, I go on to say here just along the line you suggested that without this over-all provision and limitation with regard to interference in domestic matters, the Charter would probably have not been ratified by the Senate of the United States, and it would not have been approved by the American people.

I know that because I was around making speeches even at that time, and I was often asked the question: Can the United Nations interfere in our domestic affairs? I said "No" because I honestly believed that at the time. There was no thought at that time about that.

Senator HENDRICKSON. Your answer "No" was because of this provision?

Mr. HOLMAN. That is correct, and because it was a primary premise, and in spite of this recommendation that the Economic and Social Council should promote and make recommendations on social and economic affairs, which of course are internal in many implications, I felt that this overriding initial premise in the Charter controlled everything in the Charter and that we would never face this situation of attempting to establish international legal codes by treaty or otherwise.

Senator FERGUSON. I would say that at the time that was my opinion. I knew of no one that contended otherwise.

Mr. HOLMAN. I am sorry, I was disabused by a gentleman in the State Department within the year.

Senator FERGUSON. I mean at that time did you know of anyone? Mr. HOLMAN. No, no. I publicly said to audiences which I later had to speak before in connection with this matter who reminded me that I had said nothing like this was going to happen.

So I say, soon after the United Nations had become fully organized and commenced functioning, we began to hear, at least early in 1946, that by and through the appointment of a Commission on Human Rights it was intended to formulate a declaration in the nature of aspirations, this to be followed, however, by an exact and binding international legal code to be ratified as treaties covering the internal social, economic and legal affairs of each country, including the United States.

That first developed to my knowledge around 1946. It is revealing to note the make-up or personnel of this Commission on Human Rights, which consisted of Mrs. Eleanor Roosevelt as its Chairman and the sole United States representative. She is a very estimable lady in many respects, but certainly not trained in legal draftsmanship.

Australia's representative was Col. William Roy Hodgson, by training a military man, and from his biography a person whose experience had been largely confined to Government service and certainly had no knowledge of the American Constitution and Bill of Rights.

The United Kingdom representative was Mr. Charles Dukes, a trade-unionist by profession. These three were the only AngloAmericans or representatives of English-speaking peoples on the