vily, the most pressing issues confronting them arose primarily from foreign ses. Gravest of these was the threat to the national security presented by tish hostility, manifested in many ways, but most menacingly by "cold war" etics along the Canadian border. Others were the Spanish threat to the thwest frontier, inability to protect American shipping on the high seas, and depressed condition of the foreign commerce on which the economic well-being the country largely depended. Compounding and aggravating these difficulties s the inability of the existing Government to act with force and vigor in the duct of foreign affairs and to make the States honor the treaty obligations it umed on behalf of the Nation.

The remedy the delegates sought was what they termed a "more perfect union." hat they expected from such a union was perhaps best expressed by Alexander milton, who wrote in the Federalist Papers: "The principal purposes to be swered by union are these-the common defense of the members; the preservan of the public peace, as well against internal convulsions as external attacks; è regulation of commerce with other nations and between the States; the perintendence of our intercourse, political and commercial, with foreign counes" (the Federalist No. 23). It will be noted that the essential elements, if se purposes were to be achieved, were an adequate military establishment and strong foreign affairs power, of which a strong and effective treaty power was indispensable part. If the country's foreign difficulties were to be overcome, settlement had to be reached with Great Britain in particular, for in that ection lay the greatest potential danger. Such a settlement could be had only war or by negotiation (VII Burnett Letters of Members of the Continental ngress 637-638). It is noteworthy that among the earliest acts of Wash ton's administration, after the new Constitution had been ratified, were the ading of troops to chastise thte Indians of the Northwest Territory and the patch of an agent to London to seek a negotiated settlement of the sources dispute between the United States and Great Britain.

Great Britain persistently refused to enter into formal diplomatic relans, treating American emissaries with aggravating correctness and question. whether they represented 1 one state or 13 (VIII Adams, C. F., Works of hn Adams 243). It continued military occupation of the frontier forts it had omised in the Treaty of Peace to evacuate. It tampered with the Indians of » Northwest Territory, circulating its special agents among tribes deep within ited States territory, supplying them with arms and ammunition and encouragthem to keep the frontier regions in constant dread of an outbreak of savage rfare. It intrigued with malcontents in the new settlements of Ohio and ntucky. It precipitated a dispute over the Maine boundary and connived with paratist elements in Vermont, using special trade privileges as bait for the ession of that area from the Union. From Maine to the line of the Mississippi itish "forest" diplomacy pursued a policy well calculated to take advantage American weakness and of the dissolution of the Union which the British ieved to be imminent. Along the southwest frontier there were disturbing rallels to the situation on the Canadian border. The Spanish claimed large eas east of the Mississippi River by right of conquest, and garrisoned fortified sts within the disputed territory. They continually stirred up the Indians of › region, encouraging them in forays against the frontier settlements. Spain sed the Mississippi to the trade of the Kentucky and Tennessee settlers, threat ng them with economic strangulation, and set about intriguing with discon ited factions among them, hoping to detach the whole area from the Union as uffer between the United States and the Spanish dominions to the south and st.

The effects of national weakness in foreign affairs were felt also on the high Is. America's sea-borne commerce, in which every section of the country had a ge stake, was in difficulties. Not yet recovered from postwar depression, it s seriously hampered by foreign discriminations. The government under the nfederation was unable to remove these discriminations either by treaty or by aliatory action, and failed to give adequate protection to such commerce as the ited States did have. It concluded commercial treaties, which the States did : always observe scrupulously (XXIX Journals of the Continental Congress, 7–820, 847 ; XXXIII : 676), with France, the Netherlands, Prussia, and Sweden, : failed with Great Britain and Spain, where such treaties were most needed. eat Britain, confident that it was secure against American retaliation, refused tright. Spain was more amenable, but its price was American acceptance of sure of the Mississippi River, which aroused such opposition in the Southern ates that negotiations had to be broken off. American traders had access to the

most profitable European markets only on disadvantageous terms and were virtually shut out of the lucrative West Indies trade. Their situation in the Mediterranean was even worse, for Barbary corsairs preyed upon American shipping at will, and the Government could neither buy them off nor fight them off (XXIX Writings of Washington 185).

STATE VIOLATIONS OF TREATIES

Great Britain was able to cite serious treaty violations by the United States as justification for its own behavior. The enactment by various States of laws impeding the recovery of debts pursuant to article IV of the Treaty of Peace and the inability of the National Government to enforce compliance with the treaty obligation placed the United States in a difficult and potentially dangerous position. Its most implacable enemy was given what the authors of the Federalist Papers hold to be one of the "just causes of war" (the Federalist No. 3), and at the very least a valid excuse for its own deliberate violation of the Treaty of Peace. Great Britain was not loath to take advantage of the situation. John Adams, the American Minister in London, was told bluntly that Great Britain was prepared to honor the treaty by returning the frontier posts as soon as the United States compelled the States to observe the treaty provisions on the collection of debts (XXXI Journals 784). John Jay, as Secretary of Foreign Affairs, presented a report to Congress stressing the need for observing the treaty obligation (XXXI Journals 781-874), and Washington was moved to write to him "what a misfortune it is, that Britain should have so well founded a pretext for its palpable infractions" (III Correspondence and Public Papers of John Jay 207). The dangers arising from treaty violations were emphasized again and again during the Convention, during the debates in the ratifying conventions, and in contemporary writings.

FRAMING OF TREATY CLAUSES

It was against the background of this international situation that the treatymaking power of the Constitution was framed, and the framers were careful to assure that the power would be capable of effective use in times of stress. Its principal features: absence of specific limitations as to scope or subject matter, status as part of the supreme law, and retroactive effect, reflect the exigencies of the time as well as considerations of political theory. No serious effort was made during the Convention, apparently, to limit the scope or subject matter of treaties. Treaties were regarded as a basic instrument of national policy, and it was recognized that, if treaties were to achieve the results desired, they would have to deal with subjects that were vital to State and sectional interests, such as fisheries, the West Indies trade, navigation of the Mississippi, debts owed to foreigners, territorial limits, and the like. Otherwise, the negotiated settlement of outstanding differences with Great Britain and Spain would be frustrated.

The supreme law clause likewise was regarded as indispensable and was agreed to unanimously by the Convention (II Farrand 22). The experiences of the past 4 years with the Treaty of Peace with Great Britain had demonstrated the futility of even the broadest power to assume treaty commitments that were binding as international law unless, as had not been possible under the Confederation, such commitments could be made binding also as domestic law. In view of the special importance of assuring that treaties entered into under the Articles of Confederation, particularly the Treaty of Peace with Great Britain, would not be impaired, the supreme law clause was made retroactive (II Farrand 417). This is why it was necessary to refer to treaties made “under the authority of the United States." Simple reference to treaties made "in pursuance" of the new Consttution was not sufficient to cover treaties concluded previously.

LIMITATION ON TREATYMAKING

It was only after the establishment of a treaty power both broad and effective that the delegates turned to consideration of possible limitations on the exercise of that power. Here sectional interests came into play, particularly those of New England, which was alarmed at the possibility of treaty impairment of its hardwon right to participate in the Newfoundland fisheries, and of the Southern States which, mindful of the Jay-Gardoqui negotiations, were fearful of possible treaty impediments to the navigation of the Mississippi River. Less than a year before, the proposed Jay-Gardoqui treaty had forcefully demonstrated how impor

nt State or sectional interests could be affected by treaty. It had further own how the advantages one section desired to gain by treaty might have be obtained at the expense of another section. The Jay-Gardoqui negotiations fered the delegates a striking example of the potentialities of the treaty power. he treaty, had it been concluded, would have given substantial commercial vantages to the Northern States, and those States lined up in favor of it. ese advantages, however, were obtainable only in return for a commitment to rmit closure of the Mississippi River to American commerce and navigation 25 or 30 years. The Southern States were unalterably opposed to this mmitment, and Jay's request for authority to negotiate on this basis failed in -ngress, 7 States to 5.

The delegates at the Philadelphia Convention, after considering many altertive plans, finally agreed upon the two-thirds rule, which was equivalent in ms of the new Constitution to the 9-State rule of the Articles of Confederation at had blocked the Spanish negotiation. This represented, as was the case th many other provisions of the Constitution, the drawing of a fine balance tween general and particular interest. In this case the freedom of action eded for dealing with a threatening international situation was balanced ainst adequate protection for important domestic interests, and the greatest ount of protection compatible with the ability to act effectively in the national urity was provided for. The delegates were faced with the drastic conseences the treaty power could have to their most vital interests, yet, after full liberation, the only limitation they deemed necessary was the two-thirds rule. It was with the treaty clauses in this form that the Constitution was subtted to the States for ratification and adopted by them. The treaty clauses ere approved by the States without change and with little opposition. In the tifying conventions interest in the treaty power seems to have waned as disnce from the Mississippi River increased. The most intensive discussions curred in States having an immediate stake in the control of that river. For e most part, these discussions reflect more the practical concerns aroused by e Jay-Gardoqui negotiations than theoretical considerations as to the exercise that power in hypothetical future situations (III Elliott's Debates 315, 316, 1, 353). However, the treaty clauses found strong defenders in these States, well as in the Northern and Eastern States, and their conviction that the eaty power as framed at the Philadelphia Convention would serve the country Il prevailed.

(Economic Treaties Branch, Department of State, March 31, 1953.)

ANNEX B

EATY PROVISIONS PREVAILING OVER INCONSISTENT STATE LAWS ON SUBJECTS ON WHICH TREATIES WERE NECESSARY FOR THAT PURPOSE

There are a large number of treaty provisions, many of which were concluded the early days of this Government, which prevail over inconsistent State laws subjects where, in the absence of treaty provisions, the authority of the Conss to legislate was considered nonexistent, or at least questionable. The number of subjects to which those provisions relate is relatively small, t each of them is important. The necessity for treaties on most of the subts mentioned has long been recognized as an important factor in the developnt and maintenance of friendly relations with foreign nations. While not to be considered as all-inclusive, the following is a representative of such subjects covered in treaties concluded by the United States:

Real and personal property rights of aliens, especially in connection with the right to inherit and dispose of property and the proceeds thereof. Regulation of fisheries of international concern.

Regulation of migratory birds and other wildlife of international concern. National treatment of aliens as to taxation.

Exemption of consular officers of other nations from taxation.

Rights of consular officers in the settlement of estates.

Rights of aliens to engage in trade and related activities, manufacturing, and professional activities.

Control of production and distribution of opium.

The following comments and tabulations are indicative of the consistent prace of the United States of including such provisions in treaties.

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REAL AND PERSONAL PROPERTY RIGHTS OF ALIENS

The treaty of amity, commerce, and navigation concluded with Great Britain November 19, 1794 (the Jay Treaty), which was the first treaty concluded by the United States after the adoption of the Constitution, provides in articles IX and X as follows:

"ARTICLE IX

"It is agreed that British subjects who now hold lands in the territories of the United States, and American citizens who now hold lands in the dominions of His Majesty, shall continue to hold them according to the nature and tenure of their respective estates and titles therein; and may grant, sell or devise the same to whom they please, in like manner as if they were natives; and that neither they nor their heirs or assigns shall, so far as may respect the said lands and the legal remedies incident thereto, be regarded as aliens.

"ARTICLE X

"Neither the debts due from individuals of the one nation to individuals of the other, nor shares, nor monies, which they may have in the public funds, or in the public or private banks, shall ever in any event of war or national differences be sequestered or confiscated, it being unjust and impolitic that debts and engagements contracted and made by individuals, having confidence in each other and in their respective Governments, should ever be destroyed or impaired by national authority on account of national differences and discontents."

The rights of aliens to dispose of their personal property within the United States by testament, donation, or otherwise, and the rights of aliens to take real property, at least to the extent of having a reasonable time to sell it and withdraw the proceeds without being subjected to discriminatory taxes, have long been protected by treaty, as indicated by the following list of countries with which such treaties were concluded in the early years indicated:

Certain representative types of property provisions contained in other treaties, dating from 1846 on, are set forth below:

Treaty of 1853 with Argentina respecting friendship, commerce, and navigation, article IX (T. S. 4; 10 Stat. 1009; 18 Stat. (2) 18):

Provides that in the acquisition and disposition of property of every sort and denomination, either by sale, donation, exchange, testament, or otherwise, citizens of the two contracting parties shall enjoy same privileges, liberties, and rights as native citizens.

Treaty of 1816 with Colombia respecting peace, amity, navigation, and commerce, article XII (T. S. 54; 9 Stat. 886; 18 Stat. (2) 552):

Provides that citizens of each party have power to dispose of real or personal property within jurisdiction of other by sale, donation, testament, or otherwise; and their representatives, being citizens of other party, shall succeed to the property and dispose of it at will.

Treaty of 1928 with Austria respecting friendship, commerce, and consular rights, article I (T. S. 838; 47 Stat. 1877);

Provides that nationals of contracting parties within territories of other shall be permitted to own, erect, or lease appropriate buildings and to lease lands for residential, scientific, commercial, etc., purposes on same terms as nationals of the country.

Similar provisions are contained in the treaty of 1926 with El Salvador (T. S. 827; 46 Stat. 2818), the treaty of 1925 with Estonia (T. S. 736; 44 Stat. 2379), the treaty of 1934 with Finland (T. S. 868; 49 Stat. 2660), the treaty of 1923 with Germany (T. S. 725; 44 Stat. 2133) and others.

Treaty of 1928 with Austria (cited above), article IV:

Provides that nationals of one party inheriting real property or interests in the territory of the other shall be allowed 3 years, or longer if necessary, to sell the property and withdraw the proceeds, without being subject to discriminatory taxes.

Similar provisions are contained in the treaties with El Salvador, Estonia, Finland, and Germany (cited above) and in the property convention of 1901 with Guatemala (T. S. 412; 32 Stat. 1944).

Treaty of 1858 with Bolivia respecting friendship, commerce, and navigation, ticle XII (T. S. 32; 12 Stat. 1004; 18 Stat. (2) 69).

Provides that citizens of one party may dispose of personal goods within jurisdiction of other, and that their representatives, being citizens of other country, shall succeed to personal goods on same terms as would inhabitants. Similar provisions are contained in the treaty of 1934 with Finland (T. S. 868; 49 Stat. 2660), the property convention of 1899 with Great Britain, article II (T. S. 146; 31 Stat. 1939), and the property convention of 1901 with Guatemala, article I (T. S. 412; 32 Stat. 1944).

REGULATION OF FISHERIES OF INTERNATIONAL CONCERN

The necessity for Federal regulation of certain fisheries of international conn was recognized in the negotiation of the treaty with Great Britain regarding heries in United States and Canadian waters, signed at Washington April 11, 08. While that treaty was never actually applied, it was ratified by the Presint, with the advice and consent of the Senate, and proclaimed on July 1, 1908. The halibut fisheries conventions signed with Canada on May 9, 1930, and nuary 29, 1937, and the sockeye salmon fisheries convention signed with nada on May 26, 1930, each of which established international commissions the investigation and regulation of the fisheries, are examples of treaties der which the Federal Government undertook the exclusive regulation of cern fisheries in collaboration with the government of another nation. The convention between the United States and other governments for the rthwest Atlantic fisheries, dated at Washington February 8, 1949, is another tstanding example of establishing international regulation of fisheries that uld not be accomplished without a treaty.

REGULATION OF MIGRATORY BIRDS AND OTHER WILDLIFE

The convention between the United States and Great Britain for the protecn of migratory birds signed August 16, 1916, was negotiated after a Federal v for the protection of migratory birds was held invalid as not being within e power of the Federal Government. After the convention was brought into ce and enabling legislation enacted, the legislation was upheld by the court the basis of the treaty (Missouri v. Holland, 252 U. S. 416 (1920)). The convention establishes a closed season for certain migratory game birds, gratory insectivorous birds, and other migratory nongame birds listed in the avention.

A similar convention signed with Mexico February 7, 1936, extends to game ammals as well as migratory birds.

A convention (to which the United States is a party) which extends more badly in the protection of wildlife is the inter-American convention on nature otection and wildlife preservation opened for signature at Washington October 1940.

NATIONAL TREATMENT OF ALIENS AS TO TAXATION

Provisions in treaties prohibit the imposition upon aliens or their property taxes higher or otherwise more burdensome than those imposed upon nanals. Such prohibitions apply to the various States and political subvisions thereof as well as to the Federal Government.

The treaty provisions hereinbefore mentioned regarding the rights of aliens dispose of real and personal property and withdraw the proceeds without