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The views of the founding fathers have had, as I shall show, but little influence upon the Supreme Court in the interpretation of the treatymaking power.

The purpose of inserting the treaty-supremacy clause in article VI of the Constitution was to compel the States to respect the Nation's promise in the treaty of peace with Great Britain concerning the recovery of British private debts contracted before the War for Independence. Notwithstanding the decision in Ware v. Hylton ( (1796) 3 Dallas 199), holding this article to be supreme over the confiscatory laws of the States, the clause failed of its purpose and the United States was obliged to pay Great Britain $3 million in satisfaction of the confiscated debts. A commentator of the present generation, after studying the decision of the Supreme Court in its political setting, concludes:

Ware v. Hylton was a case calling for judicial statesmanship of the highest order. It arose under national and international conditions which have never existed since. Article 4 [of the Treaty of Peace of 1783] was obviously unjust. Looked at nationally or internationally the State wartime debt legislation had a national purpose. The responsibility for reparation was national and the United States was forced to admit it. (Treaties and Constitutional Law, by Willard B. Cowles, 1941, pp. 83–84).

So this clause which had such a tremendous influence upon the treatymaking power of the United States practically failed of its original purpose at the time it was inserted in the Constitution.

The treaty supremacy clause was vigorously opposed in some of the State conventions when the Constitution was submitted for their ratification. Criticism of the Constitution on this ground was one of the main reasons for the addition of the Bill of Rights. Unless this phase of our constitutional history is studied, there is little point in trying to dogmatize on what the Founding Fathers meant by the treaty supremacy clause. Patrick Henry declared in the Virginia. State Ratifying Convention:

Sure I am, if treaties are made infringing our liberties it will be too late to say that our constitutional rights are violated. * * * Suppose you be arraigned as offenders and violators of a treaty made by this Government. Will you have a fair trial which offenders are entitled to in your own Government? Will you plead a right to the trial by jury? (Cowles, op. cit., p. 33.)

Those who object to amending the treatymaking power because of the fancied dangers involved, fail to see the actual dangers to our constitutional rights as foreseen by Patrick Henry which are inherent in proposals now under consideration by the United Nations. I refer to the draft statute for an international criminal court formulated by a United Nations Committee at Geneva in the summer of 1951 under an American chairman appointed by the State Department. The most significant feature of this proposal from an American point of view is its express prohibition of trial by jury. Should the United States persist in participating in the formulation of this statute and eventually ratify it, we could not carry it out in good faith, with reference to crimes committed in the United States, without violating our constitutional requirements securing the right of trial by jury and in the State where the crime is committed, not to mention other important rights of fair trial, and so forth. Moreover, the draft statute could not in such cases be applied by the United States without infringing upon the judicial power as laid down in the Constitution, namely, that

there shall be but one Supreme Court, and that the trial of all cases arising under treaties shall take place in the Federal courts (article III, secs. 1 and 2).

We just cannot create an international court to be supreme to our one Supreme Court or try them in international courts, because the Constitution provides that crimes arising under treaty shall be subject to the jurisdiction of our Federal courts.

The adoption of the proposed amendment would remove the doubt expressed by Mr. Justice Holmes in Missouri v. Holland that treaties must be made in pursuance of the Constitution, because article VI now reads that treaties need only be made under the authority of the United States, which may mean no more than "the formal acts prescribed to make the convention." Namely, that if we conclude any treaty on any subject, and the Senate agrees to it by a two-thirds vote, then that is a treaty under the authority of the United States without reference to any other provisions of the Constitution. That is what Mr. Justice Holmes means, and it cannot mean anything else.

The proposed amendment will prevent further development of the dicta of Mr. Justice Sutherland in the Curtiss-Wright case (1936, 299 U. S. 304) that the treaty power does not rest in grant in the Constitution-we take it another step-but is inherent in the sovereignty of the Nation, a view which found support in the minority opinions of the Supreme Court in the recent steel-seizure case (Youngstown Co. v. Sawyer (1952, 343 U. S. 579)).

We see this progression of ideas about this extent, this unlimited extent of the treatymaking power and we are now having it brought forward that it does not rest in grant at all, it is inherent in the Government.

Another series of objections are grounded on the argument that the proposed amendment would seriously curtail the treatymaking power of and prevent the Government from entering into necessary treaties. I shall undertake to show that these arguments are not tenable.

The amendment approved by the American Bar Association would not interfere in any way with the conclusion of treaties under article VI of the Constitution as it now stands. The first sentence of the amendment that

A provision of a treaty which conflicts with this Constitution shall not be of any force or effect

would have no bearing on the negotiation and ratification of treaties, except to admonish the American negotiators that they are subject to the Constitution and derive no extra constitutional authority or power because they happen to be at the time conducting negotiations with a foreign government.

I would like to call attention to a sentence in the opening part of Secretary Dulles' statement which I think he did not give sufficient consideration to when he said:

Each of the resolutions now before this committee would deprive the Nation of treatymaking power in large areas. They would deny to all treaties the force of law, making their enforcement depend on subsequent action of Congress.

Senator SMITH. That is ridiculous, is it not, that statement? Mr. FINCH. The amendments themselves have no bearing on the negotiation and conclusion of treaties, giving them all the interna

tional force and all the validity in our courts which they have as political instruments of the Government.

Senator WATKINS. As between us and other nations.

Mr. FINCH. And other nations. It is only when the treaty becomes legislative in character as bearing on the people of the United States as distinguished from its Government that these amendments have any effect or would have any effect within the United States.

The second sentence of the American Bar Association reads:

A treaty shall become effective as internal law in the United States only through legislation which would be valid in the absence of treaty.

The adoption of the first clause of this provision would have no more effect upon the treatymaking power of the United States than similar provisions of law have upon the treatymaking powers of substantially all other nations of the world. An analysis of modern constitutional provisions concerning the treatymaking power was printed in the Report of the Committee on Peace and Law for September 1, 1950.

I would like to suggest here, Mr. Chairman, the State Department has supplied a memorandum about some of these provisions. This report of the Committee on Peace and Law of September 1, 1950, contains an analysis of the treaty provisions of all the nations of the world which at that time had constitutions. Anyone can read what the State Department says and can read what we say in our report and decide for themselves whether our statement is correct or not.

Senator WATKINS. Has that been made a part of the record? Mr. FINCH. I would suggest you make it a part of the record. Mr. SMITHEY. That was made part of the record in Senate Joint Resolution 130, and the State Department submitted a similar compilation when Mr. Dulles appeared. The compilation of the American Bar appears in the hearings on Senate Joint Resolution 130, beginning at page 496. The State Department compilation appears in the hearings on this resolution at the conclusion of Mr. Dulles' formal

statement.

Senator SMITH. Suppose we make it a part of the record of this case. Senator WATKINS. I would like to have it available.

Mr. FINCH. I have a copy. I would be glad to submit it for the record.

(The information follows:)

MODERN CONSTITUTIONAL PROVISIONS CONCERNING THE TREATYMAKING POWER

The summaries and texts collated herein are based upon or reproduced from Constitutions of Nations, a compilation in the English language of existing constitutions of the nations of the world, collected, annotated, and published by Amos J. Peaslee in three volumes, The Rumford Press, Concord, N. H., 1950, $22.50 per set. Unless otherwise stated, all references are to that publication. A few constitutions of miniature states or in which treatymaking is completely within the prerogative of the monarch, are omitted.

Afghanistan, Fundamental Principles, October 31, 1931 (Peaslee, I, 21–34) Art. 7. Rights of the King. Conclusion of peace and treaties generally. Art. 46. Contracts, agreements, and grants of concessions (monopolies), whether relating to trade, industry, agriculture, etc., and whether Afghan or foreign, will be concluded with the approval of the National Council. Albania, Constitution of, March 15, 1946 (Peaslee, I, 39-50)

Art. 54 (8). The Presidium of the People's Convention ratifies international treaties, except when it considers it necessary for ratification to be made by the People's Convention.

Art. 59. The Government carries out treaties with foreign governments and other international obligations.

Art. 60. The Government is composed of the Prime Minister, deputy Prime Minister, the Ministers, Chairman of Committee for Economic Planning, and Chairman of the Committee of Control.

Argentine Republic, Constitution of, March 16, 1949 (Peaslee, I, 58-88)

The President concludes and signs treaties, subject to approval of Congress. Art. 68 (19) and Art. 83 (14).

Art. 22. This Constitution, the laws of the nation dictated by Congress in consequence thereof, and treaties with foreign powers are the supreme law of the nation; and the authorities of each Province are obliged to conform thereto, notwithstanding any rule to the contrary which the provincial laws or constitutions may contain, with the exception so far as the Province of Buenos Aires is concerned, of treaties ratified following the Pact of November 11, 1859.

Art. 95. The Supreme Court of Justice and the inferior courts of the nation shall have jurisdiction of all cases turning upon points governed by treaties with foreign nations.

Australia (Peaslee, I, 93-114). See Great Britain and the British Commonwealth

Belgium, Constitution of, February 7, 1831 (Peaslee, I, 127-143) with amend ment

Art. 68. The King makes treaties of peace, of alliance and of commerce. Treaties of commerce, and treaties which may burden the State, or bind Belgians individually, shall take effect only after having received the approval of the two houses.

Bolivia, Constitution of, November 23, 1945 (Peaslee, I, 153-176) as amended Art. 94 (2). The President shall have power to negotiate and conclude treaties with foreign nations and to exchange them when approved by Congress.

The Congress in joint session shall approve or reject international treaties and conventions of all kinds (arts. 59 (13) and 60 (5)).

Brazil, Constitution of, September 24, 1946 (Peaslee, I, 181-228)

The President shall have exclusive power to conclude international treaties and conventions, subject to ratification of the National Congress. Art. 87. The National Congress shall have exclusive power to give final decision respecting treaties and conventions celebrated with foreign states by the President of the Republic. Art 66 (I).

The Federal Supreme Court shall have power to judge in ordinary appeal cases decided by local judges based on contract or treaty between a foreign state and the Union. Art. 101, II (b). And to judge on special appeal when the decision is contrary to the text of a federal treaty or law. Art. 101, III (I).

Bulgaria, Constitution of, December 4, 1947 (Peaslee, I, 233–245)

Art. 35 (9). The Presidium of the National Assembly ratifies and denounces treaties concluded by the Government.

Art. 39. The Government consists of the President and Vice-Presidents of the Council of Ministers, the Ministers and the Presidents of certain commissions. Burma, Union of, Constitution of, September 24, 1947 (Peaslee, I, 250-294)

The exclusive legislative authority of the Parliament shall extend to the enter ing into and implementing of treaties and agreements with other countries. Art. 92 (1), and Union Legislative List 1, 2 (5).

Art. 135 (1-a). The High Court shall have exclusive original jurisdiction in all matters arising under any treaty made by the Union.

Art. 213 (1). Every international agreement to which the Union becomes a party shall be laid before the Parliament.

(2) No international agreement requiring or likely to require legislation in order to give it effect thereto shall be ratified except with the approval of the Parliament.

(3) No international agreement involving a charge upon the revenues of the unon shall be ratified unless the terms of the agreement shall have been approved by the Chamber of Deputies.

Art. 214. No international agreement as such shall be part of the municipal law of the Union, save as may be determined by the Parliament.

Byelorussian Soviet Socialist Republic, Constitution of, February 19, 1937 (Peaslee, I, 299-314)

Art. 43 (g). The Council of Ministers of the B. S. S. R. directs relations with foreign states in accordance with the general procedure established by the U. S. S. R. concerning relations of the United Republics with foreign States. See Union of Soviet Socialist Republics.

Canada (Peaslee, I, 320-366). See Great Britain and the British Commonwealth

Chile, Constitution of, September 18, 1925, as amended (Peaslee, I, 412–436) The President shall conclude and sign treaties. they must be presented to the approval of Congress.

Before their ratification Art. 72 (16), Art. 43 (5).

China, Constitution of, December 25, 1927 (Peaslee, I, 445–464)

Art. 38. The President shall, in accordance with the provisions of the Constitution, exercise the powers of conclusion of treaties.

Art. 58. Prior to the submission to the Legislative Yuan of any treaties

*, the President and the heads of the various ministries and commissions of the Executive Yuan shall present the same to the Executive Yuan Council for discussion and decision.

Art. 63. The Legislative Yuan shall have power to decide upon conclusion of treaties.

Columbia, Constitution of, February 16, 1945 (Peaslee, I, 469–599)

The President shall conclude treaties and conventions with foreign powers, which shall be submitted for the approval or rejection of Congress. Art. 76 (22), Art. 120 (20).

Costa Rica, Constitution of, December 7, 1871, as amended (Peaslee, I, 503–522) The Executive shall enter into treaties and conventions with the governments of other nations and exchange them after approval and ratification by the Congress. Art. 82 (4), Art. 109 (9).

Cuba, Constitution of, July 5, 1940 (Peaslee, I, 526–596)

The President shall make treaties with other nations, which he must submit for the approval of the Senate, except peace treaties which must be approved by Congress. Art. 122 (h), Art. 142 (g).

Czechoslovakia, Constitution of, June 9, 1948 (Peaslee, I, 602–639)

Sec. 74 (1). The President of the Republic shall negotiate and ratify international treaties. Political treaties, and economic treaties of a general character, as well as such treaties as require an Act to be carried into effect, shall require enactment by the National Assembly prior to ratification. Treaties involving alteration of State boundaries shall be enacted by the National Assembly in the form of a Constitutional Act (section 166). The negotiation of international treaties and agreements which do not require enactment by the National Assembly and where ratification is not a condition, may be delegated by the President to the Government and, with the consent of the Government, to individual members thereof. On what conditions economic treaties of a general character may be carried into effect even prior to the sanction of the National Assembly being expressed, shall be prescribed by Act.

Denmark, Constitution of, June 5, 1915, with amendments (Peaslee, I, 644–654) Art. 18. Without the consent of the Rigsdag, the King shall not *** make or dissolve alliances, or conclude or terminate commercial treaties, cede any part of the country, or undertake any engagement which may alter existing constitutional conditions.

Dominican Republic, Constitution of, January 10, 1949 (Peaslee, I, 658–676)

The President shall have power to conclude treaties with foreign countries, being obliged to submit the latter to the approval of Congress without which they shall have no validity nor be binding on the Republic. Art. 33 (15), Art. 49 (7).

Ecuador, Constitution of, December 31, 1946 (Peaslee, I, 680-716)

The President of the Republic has the power and duty to enter into treaties and ratify them, having first secured the approval of Congress, and to exchange ratifications. Art. 92.

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