Mr. TILLETT. You asked am I familiar with that, and I say I am

not.

Senator HENDRICKSON. Does that say practice of law or professions? Mr. SMITHEY. Professions.

Senator HENDRICKSON. The point I meant was that it did not include the legal profession.

Mr. TILLETT. I am not familiar with that; no, sir.

Senator HENDRICKSON. I do not want to divert from your formal statement here, but I am a little bit concerned about your lack of confidence in State legislatures. When I was in the State legislature, we treated with several matters that had to do with international affairs. We adopted resolutions memorializing the Congress. Would you say that a legislature which adopted a resolution memorializing the Congress to look into and study the possibility of a North Atlantic Union or World Federation of Governments did not know what it was doing?

Mr. TILLETT. No. Those are broad matters of public policy and I think they come clearly within the constitutional provision of assembly and petition. I think any group of citizens have a right to petition.

Senator HENDRICKSON. We have been memorialized by a number of legislatures.

Mr. TILLETT. Yes; I think so. But I think as far as the legislatures being competent to deal with detailed matters of international relations, I do not think they are competent and I don't think they are elected for that purpose. I don't think that they should be.

Senator HENDRICKSON. I agree in the main with that statement. But I do think we should be just as careful about our selection of States legislatures as I do about our Members of Congress.

Mr. TILLETT. Well, sir, we are doing our best down in my country to get the right group in. Whether or not the balance of those voters are going to agree with me or not, I don't know. But I come back to the proposition that the answer to bad laws, whether it is city, county, State, or Nation, is for the citizenship to be alerted and to vote, and not to try to put some gadget into the Constitution and then think you have done your duty and abandoned your interest in public affairs.

Senator HENDRICKSON. We have to be better citizens. You are saying that.

Mr. TILLETT. That is it exactly. And that is the answer to almost all difficulties with government.

Senator HENDRICKSON. I am in complete accord with you on that statement.

Mr. TILLETT. Under the treaty-making power as it now stands important and complicated commercial treaties and consular conventions are negotiated without reference to the restrictions of State law. It is very easy to perceive that within the complicated provisions of many treaties there could very easily be fragmentary provisions which would conflict with State statutes and which would, therefore, not become binding until these States had approved such provisions. Again, I repeat that the idea of submitting treaties to State legislatures for ratification is a monstrous absurdity, and yet that is what the American Bar Association proposal would require of us in many

instances in the future.

TREATIES AND EXECUTIVE AGREEMENTS

In a letter considering this aspect of the matter, Mr. Frank E. Winslow, a distinguished North Carolina lawyer, had the following to say last winter in a letter which he wrote to a member of the house of delegates:

If you give the matter the study such an important proposition deserves, I know you will come up with the conviction that it would be hard to conceive a more dangerous thing to do at this time than for our Nation to go so far as this resolution proposes in the direction of withdrawing from the central governIt is fighting all over again ment the power to deal for all the States as a unit. the ground covered in 1787 and 1789. It was then decided that the 13 separate States (now 48) could only safely deal with foreign powers as a unit and with plenary power in the central government to protect the interests of the Union, without having to go back to the several States for further power.

If this proposed amendment were now in the Constitution I do not think that we could have entered into the North Atlantic Treaty, just to give one outstanding example.

ousness.

The second paragraph of Senator Bricker's proposal forbids the bestowal upon any international organization of any power effectively to deal with many international situations of great gravity and seriA case in point is the international control of atomic energy. The proposals for the international control of atomic energy advocated by Mr. Baruch include, among other things, international punishment for the illegal manufacture, et cetera, of atomic materials. Under the proposal submitted by Senator Bricker this and many other provisions of the American-sponsored proposal to control atomic energy would fail, and hence the whole plan would fail.

One of the important committees of the Section of International and Comparative Law deals with the subject of the international control of atomic energy. Its chairman is Mr. George A. McNulty, a distinguished lawyer in St. Louis. Last winter, while the various proposals to amend the Constitution so as to restrict the treaty-making power were under consideration, I asked Mr. McNulty to give me his opinion as to the effect of these proposals upon the control of atomic energy. I submit herewith his letter to me, which conclusively establishes the danger involved in these proposals, particularly the proposal of Senator Bricker as regards atomic energy. (The letter referred to is as follows:)

C. W. TILLETT, Esq.,

CARTER, BULL & MCNULTY,
St. Louis, Mo., February 20, 1952.

Tillett, Campbell, Craighill & Rendleman,

Charlotte 2, N. C.

DEAR MR. TILLETT: This will acknowledge, with apologies for not having answered it earlier, your letter of February 4, 1952. I am sorry to say I have again been sick.

It seems to me that the proposed amendment to the Constitution would block not only adoption of the Baruch proposals but adoption of the proposals of the UNAEC, which, in part, are based upon the Baruch proposals.

Both the Baruch proposals and the UNAEC reports indicate that there must be actual control by an international authority of all activities potentially dangerous. As you point out, both also advocate punishment through an international agency.

Almost all of the recommendations so far made for international control of atomic energy, to my mind, would run afoul of the proposed constitutional amendment.

For example, in May 1945, Stimson recommended international supervision and control of the entire field of atomic energy and I do not see how Congress could implement any treaty provisions which might achieve this end "under its delegated power in the absence of such treaty."

The Acheson-Lilienthal report of March 28, 1946, states that there is needed international ownership and management of raw materials and key installations. Certainly Congress could not delegate such power to an international agency, absent such treaty provisions. The same report states that "dangerous" operations must be carried on by the Atomic Development Authority and that "safe" activities should be licensed and "quotas” given to maintain a “strategic balance."

The Baruch proposals of June 4, 1946, we have already discussed. Certainly the "condign punishment" must be meted out by an international agency. Furthermore, the Baruch proposals state that effective control can only be maintained by managerial control or ownership of all activities potentially dangerous. This, of course, means control or ownership by an international agency.

The Soviet proposals of June 11, 1947, advocate periodic inspection (evidently by an internal agency) of declared plants, plus special investigations (by the same agency) where "grounds for suspicion exist." On October 23, 1950, Vishinsky, in the United Nations Assembly, stated inspection should be carried out by a United Nations agency, acting without veto, which should be "entitled to send its inspectors to any place regarding which suspicion may arise" and that the agency should have access to all atomic mines and plants and the right to station observers at such plants and the right not only to demand information from any government but to verify that information. How even this limited measure of control could be accomplished if Congress' present delegated powers may not be enlarged by treaty, it is difficult for me to see.

My personal opinion is that the proposed constitutional amendment would obliterate the efforts so far made toward effective international control of atomic energy.

Sincerely yours,

GEO. A. MCNULTY.

Mr. TILLETT. It is true that the international control of atomic energy at the present time is at a standstill on account of the attitude of Russia, but if the time ever comes when the personnel in charge of the Russian Government changes, whether by internal revolution or by external pressure, and a new group takes charge who are willing to participate in the international control of atomic energy, it would be an unspeakable tragedy if at that time, by the constitutional amendment, our country had shackled itself so as not to be able to participate in the enterprise.

The control of atomic energy is only one of the many possible developments in the realm of international law that may come up for adoption by treaty in the many years that are to come while the human race struggles to find ways to relieve itself of the scourge of war and replace savage force with intelligent law. As these possibilities evolve and present themselves, America should not, America must not, be prevented by these or any other constitutional amendments from participating in the great and noble enterprise of building the structure of enduring peace.

I urge that these proposals to amend the Constitution so as to restrict the treaty-making power to be not adopted.

Senator HENDRICKSON. Do you have anything to add orally? Mr. TILLETT. No, sir; that is my statement. Thank you.

Senator HENDRICKSON. We want to thank you for coming up here to present the statement.

Mr. SMITHEY. Mr. Tillett, are you familiar with the draft on the proposed International Criminal Court?

Mr. TILLETT. Yes; in general. I do not have the detail in my mind. Mr. SMITHEY. Is it before the Section on International and Comparative Law at the present time for study?

Mr. TILLETT. Judge Parker is the chairman of the committee that has that under consideration, and it is my recollection-I unfortu

nately could not be at the midwinter meeting-but the council approved that proposal and he advocated it before the house of delegates, but I believe they decided to take no action.

Mr. SMITHEY. Did he advocate it in its form as it was submitted? Were there any significant amendments that you can recall?

Mr. TILLETT. Unfortunately I was not present so I do not know. I think in general he did advocate it in its present form, but I could not say. I would not want to speak for him.

Mr. SMITHEY. Do you think if that so-called draft statute were submitted by the President to the Senate of the United States for ratification that one of the articles which I shall quote could be adopted under our Constitution? Article 37 reads as follows: "Trials shall be without a jury."

Mr. TILLETT. Of course, you have asked me a constitutional legal question that I have not addressed myself to, and I frankly just could not say one way or another. I cannot render constitutional opinions on that short notice.

Senator HENDRICKSON. You do not believe we should ever enter into any treaty or executive agreement which would give a foreign power the right to try an American without a jury, do you?

Mr. TILLETT. When you enter the realm of international criminal law, after we have progressed far enough down the road of international cooperation

Senator HENDRICKSON. I am speaking about an American within his own country. That is what this would do.

Mr. SMITHEY. Yes.

Mr. TILLETT. If it is an international crime, I think internationalism ultimately envisages international crimes and ultimately probably the international trial of international criminals. I think the Nuremberg trials were an example of the trial of international criminals under international criminal law.

Understand, I do not think that is something we are going to get to next week or next year.

Senator HENDRICKSON. I understand that.

Mr. TILLETT. But an amendment to the Constitution is a timeless thing. As we deal with other countries and gradually develop confidence in them and confidence in international institutions, we can gradually give more and more power. The difficulty about these amendments is that they tie the hands of America for all time as far as engaging in any of those sorts of matters is concerned.

Mr. SMITHEY. I was simply going to ask Mr. Tillett, Senator, if at any time within the foreseeable future he would be willing to commit a citizen of the United States to an international court which had as one of its tenets a proposition which was prohibited by the Bill of Rights. Do you follow me?

Mr. TILLETT. Frankly, I do not follow, but I catch enough of the meaning of the question to say that not having thought that through, I cannot give an answer one way or another. I should be very glad, if it were of any importance to the committee, to give consideration to it and furnish my answer after I had given thoughtful consideration. to it.

Senator HENDRICKSON. I wish you would. The committee would appreciate it, Mr. Tillett.

(The information referred to is as follows:)

TILLETT, CAMPBELL, CRAIG HILL & RENDLEMAN,
Charlotte, N. C., June 11, 1952.

Senator PAT MCCARRAN,

Committee on the Judiciary, United States Senate,

Senate Office Building, Washington, D. C.

DEAR SENATOR MCCARRAN: Thank you for your letter of June 6.

I enclose answer to the question which was submitted to me at the time when I testified. If this can be incorporated in the record, I shall appreciate it. Sincerely yours,

C. W. TILLETT.

Question. The draft statute for an international criminal court provides, among other things, that trial shall be without a jury. Addressing yourself to that particular provision, please tell us whether or not you consider that a treaty by which the United States of America would become a party to this court would be constitutional?

Answer. My answer is in the affirmative.

The right to trial by jury provided for by the Constitution relates only to that right as it was understood when the Constitution was adopted. It has been consistently ruled by the Supreme Court of the United States that as offenses have come into being which are of a character and nature outside the character and nature of the offenses recognized by the common law as requiring jury trial, there is no constitutional mandate for jury trial. A notable example of the Court's statement regarding the constitutional right to trial by jury is the following excerpt from Chief Justice Stone's opinion in the case of Er Parte Quirin (317 U. S. 1, 39):

"As this Court has often recognized, it was not the purpose or effect of section 2, article 3, read in the light of the common law, to enlarge the then existing right to jury trial. The object was to preserve unimpaired trial by jury in all those cases in which it had been recognized by the common law and in all cases of a like nature as they might arise in the future, District of Columbia v. Colts (282 U. S. 63), but not to bring within the sweep of the guaranty those cases in which it was then well understood that a jury trial could not be demanded as of right. The fifth and sixth amendments, while guaranteeing the continuance of certain incidents of trial by jury which article III, section 2, had left unmentioned, did not enlarge the right to jury trial as it had been established by that article (Callan v. Wilson (127 U. S. 540, 549)).”

The body of criminal law which will be administered by the International Criminal Court will be a new creation brought into being by treaties defining international crimes. The court will have no jurisdiction except to the extent that the same is affirmatively conferred upon the court, and no person shall be tried before the court unless jurisdiction has been conferred by the state of which he is a national, or by the state in which the crime is alleged to have been committed. Nothing of the character and nature of the body of international criminal law which it is contemplated that the International Criminal Court will administer was in existence when the Constitution was adopted, and hence the right to trial by jury mentioned in the Constitution will not extend to trials of persons charged with the violation of this body of law.

In considering all such questions as this we must recognize that it is a constitution-not a statute or contract—that we are construing. A constitution expands as the concept of law expands. The American Bar Association in its official pronouncements supporting world law and the elimination of war has been notably statesmanlike in its concept of the service to civilization which will be performed by a body of sound international law. It is inescapable that if we have world law, there will be violations of it by individuals. World law will be nothing more than a pious hope if we do not have the means of punishing its violations, and an International Criminal Court is an essential institution if world law is to have any vitality.

We must not allow a narrow literalistic construction of the Constitution to stand in the way of American participation in the great enterprise of building the structure of enduring peace upon the foundation of law.

Senator HENDRICKSON. Mr. Tillett, there is one other matter I want to discuss very briefly, because I know you are in a hurry. You treated at length with the matter of treaties.

Mr. TILLETT. Yes, sir.