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September 3, 1783, negotiated on behalf of the United States by John Adams, Benjamin Franklin, and John Jay (8 Stat. 80). During the Revolution, British property had in general been sequestered or confiscated by the various states. In the peace treaty, while the United States merely undertook to recommend to the states restitution of confiscated property, it took definitive action to protect British creditors. Article IV provided that "It is agreed that creditors on either side, shall meet with no lawful impediment to the recovery of the full value in sterling money, of all bona fide debts heretofore contracted." Article V provided that "All persons who have any interest in confiscated lands ** shall meet with no lawful impediment in the prosecution of their just rights." And Article VI guaranteed that there should be no future confiscations or prosecutions against any person on account of the part he took in the Revolutionary War.
After the adoption of this treaty, a number of States passed laws which were complained of by Great Britain as violations of its terms. An extensive report on the matter was submitted to the Continental Congress by the Secretary for Foreign Affairs [John Jay] on October 13, 1786 (31 Journals of the Continental Congress 781-874). 11 The report pointed out that American violations of these provisions afforded excuses to Great Britain for failure to comply with her obligations to evacuate certain posts and to refrain from carrying away Negroes (id. 867; see also 783-784). The following year the Continental Congress passed resolutions recommending to the States the repeal of such legislation and issued a circular letter to the States (32 Journals of the Continental Congress, 124-125, 178-184).
In 1796 these issues came before the Supreme Court. Ware v. Hylton (3 Dall. 199) involved wartime legislation of Virginia which had provided for the sequestration of British property, and had authorized payment to the State in Continental money of part or all of the amount of the indebtedness, providing that such payment would pro tanto discharge the debt. A British creditor brought suit to recover the amount of his debt and the American debtor pleaded that he had been discharged pro tanto by such a payment to the State. In support of that plea, John Marshall and Alexander Campbell, for the defendant, urged that the treaty was not intended to, and probably could not, revise debts which had become extinguished, and thus destroy vested rights of the debtor (3 Dall. 209-216). The plea was rejected by the Supreme Court.
Four of the five Justices-Justices Chase, Paterson, Wilson, and Cushingheld that the treaty overrode the State law and operated to revive a debt owed by an American citizen. Justice Iredell, while holding that the treaty provision in question should not be construed as having that effect and thus dissenting from the judgment, stated that he had no doubt that the treaty, if applicable, would control in such a situation. He referred at some length to the difficulties encountered in securing compliance with this treaty under the Confederation, and stated that the inclusion of treaties in the supremacy clause was, he believed, adopted "in consequence of the conflict of opinions I have mentioned on the subject of the treaty in question" (3 Dall. 276).
Similarly, in Hopkirk v. Bell (3 Cranch 454 (1806)) this provision was held to suspend, as to a British creditor, a general State statute of limitations. And in Higginson v. Mein (4 Cranch 415 (1808)) the Court construed article V of the treaty as protecting a lien of a British mortgagee of confiscated lands and overriding State legislation which would have invalidated such a lien. 12
These questions of the treatment of debts owed by Americans to British were matters of great importance and controversy. Charles Warren states that "Political excitement over the case [Ware v. Hylton, supra] was intense," and that it was estimated that in Virginia alone there were more than $2,000,000 of British debts. (1 Warren, Supreme Court in United States History, 144.) It was well
"As examples of State laws violating the treaty, Jay listed the following: Act of Massachusetts, November 9, 1784, suspending payment of interest between 1775 and 1783 in cases in which British subjects or absentees are plaintiffs or defendants; act of Pennsylvania "said to have been passed soon after the peace" suspending for a limited time execution on any debts, or sales on property assigned for the benefit of creditors, together with a similar act, December 23, 1784; Virginia act of June 22, 1784, continuing wartime acts inhibiting payment of British debts; acts of South Carolina postponing the right to sue for interest and principal on any debt owing by American citizens, permitting the debtor to tender land in payment of his debt and permitting prior tenders in depreciated paper to be pleaded in bar (id., pp. 806-830).
The opinion in this case was written by Chief Justice Marshall who had been counsel for the defendant in Ware v. Hylton. Chief Justice Marshall stated: "The decisions of this Court have been uniform, that the acts of the States, confiscating debts, are repealed by the treaty" (4 Cranch at 417),
TREATIES AND EXECUTIVE AGREEMENTS
known to the framers of the Constitution that the British treaty was in conflict with a number of State laws enacted for the benefit of American debtors. And the framers, recognizing the imperative necessity that international obligations be honored, clearly intended that the rights of American citizens who owed money to Englishmen should be controlled by the treaty, and that inconsistent State legislation was invalid. Even debts which had been validly discharged under State law several years prior to the treaty were revived by the treaty. Another area much dealt with by early treaties was the right to hold property, to inherit it, and to pass it to one's heirs. Few things are more clearly of exclusively State concern.' 13 such matters, so as to override inconsistent State law. Thus, in Orr v. Hodgson Nevertheless treaties have frequently dealt with (4 Wheat. 453), the provision of article VI of the peace treaty with Great Britain against future confiscations was held to protect real property of a British subject from application of the usual common law rules of escheat for alienage, and to enable her heirs-at-law to inherit it. In Society for the Propagation of the Gospel v. New Haven (8 Wheat. 464), the same provision was held to protect property of a British corporation from escheat for alienage, and to invalidate a State law declaring that property forfeit and granting it to the town of New Haven. Fairfax's Devisee v. Hunter's Lessee (7 Cranch 602 (1813)) involved a provision of the treaty with Great Britain of 1794 (8 Stat. 116) that subjects of either nation holding land within the other could continue to hold them, and could grant, sell, or devise them as if they were natives, and neither they nor their heirs or assigns should be treated as alien in respect of such lands. This provision was held to invalidate a claim of Virginia to escheat the land.1
Comparable provisions appear in a number of other early treaties. Thus the treaties of friendship concluded by the Continental Congress with France (1778, 8 Stat. 12, 18, art. XI), the Netherlands (1782, 8 Stat. 32, 36, art, VI), Sweden (1783, 8 Stat. 60, 64, art. VI) and Prussia (1785, 8 Stat. 84, 88, art. X) all contain provisions in varying forms relating to the holding and transfer of property, both real and personal. Such provisions have been uniformly upheld as within the treaty-making power. In Chirac v. Chirac (2 Wheat. 259 (1817)) the treaty with France was held to give "to the subjects of France a right to purchase and hold lands in the United States" (p. 271). In Hauenstein v. Lynham (100 U. S. 483) a treaty of 1850 with Switzerland, worded in this respect identically with the 1785 treaty with Prussia, was held to grant to an alien the right to inherit real estate and to dispose of it and withdraw the proceeds, thereby defeating escheat to the State. The Court stated, "We have no doubt that this treaty is within the treaty-making power conferred by the Constitution" (p. 490). (See also Geofroy v. Riggs, 133 U. S. 258 (treaty of 1800 with France); Clark v. Allen, 331 U. S. 503 (treaty of 1923 with Germany).)
Such treaties of friendship frequently contained provisions by which each nation granted citizens of the other the privilege of engaging in certain busi
13 "The title and modes of disposition of real property within the State, whether inter vivos or testamentary, are not matters placed under the control of Federal authority" (United States v. Fox (94 U. S. 315, 320-321); cf. United States v. Burnison (339 U. S. 87)).
This case excited the greatest public attention. The Virginia Court of Appeals refused to obey the mandate of the Supreme Court, thus provoking a test of the constitutionality of the provisions of the Judiciary Act giving the Supreme Court appellate juristion over State courts (Martin v. Hunter's Lessee (1 Wheat. 304). Supreme Court in United States History, 443-453). See 1 Warren,
15 Some question was raised in the Continental Congress as to the propriety of including provisions giving aliens the right to hold real estate. posed treaty with the Netherlands, a committee, consisting of James Madison, James Duane, and George Clymer, recommended that Mr. Adams, in negotiating the treaty, be Thus in connection with the proinstructed not to include any provision giving Dutch citizens the right to inherit or hold real estate in the United States. They pointed out that some States had objected to the grant of such rights to French subjects that "compliance of the states with a like engagement to another power will be extremely precarious," and that the proposed instruction appeared "expedient" "in order to avoid these difficulties and consequences." posal was defeated, 9 States to 3 (22 Journals of the Continental Congress, 393-396). In connection with subsequent treaties, American negotiators were instructed "that no The prorights be stipulated for aliens to hold real property within these States, this being utterly inadmissible by their several laws and policy" but aliens were to be allowed to take title, dispose of the property, and withdraw the proceeds. flects, as did the proposal referred to above, a desire not to offend the States, particularly in view of the absence of any means of enforcing treaties-one of the evils which the ConThis instruction, presumably, restitution of 1789 was intended to avert.
In 1819, Attorney General Wirt stated that the Federal Government had no power by treaty to grant an alien the power to inherit real property (1 Op. Atty. Gen. 275). contrary view was expressed by Attorney General Cushing in 1857 (8 Op. Atty, Gen. 411). The matter would seem conclusively resolved by Fairfax's Devisee v. Hunter's Lessee, Chirac v. Chirac, and Hauenstein v. Lynham, all cited in the text. A
nesses. Thus the treaty with Prussia of 1785 (8 Stat. 84, art. II) provides that "The subjects of His Majesty the King of Prussia may frequent all the coasts and countries of the United States of America, and reside and trade there in all sorts of produce, manufactures, and merchandise," and gives the same rights to American citizens in Prussia. The treaty with the Netherlands of 1782 (8 Stat. 32) gave all subjects and inhabitants of either party the right "to manage themselves, their own business' (art. IX) and empowers them "to employ such advocates, attorneys, notaries, solicitors, or factors, as they shall judge proper" (art. VII). (See also treaty with Sweden of 1783, 8 Stat. 60, 78, separate art. IV.) Later treaties of friendship have contained provisions more broadly and more explicitly guaranteeing reciprocal rights to subjects of either party to engage in businesses and professions and to be free from discriminatory treatment. Such provisions have been held to override inconsistent State or municipal legislation (e. g., Asakura v. Seattle, 265 U. S. 332 (1924) (treaty of 1911 with Japan guaranteeing right to engage in "trade" held to override a municipal ordinance of Seattle, Wash., requiring pawnbrokers to be citizens of the United States); In re Tiburcio Parrott, 1 Fed 481 (C. C. Calif. 1880) (treaty with China of 1868 giving Chinese subjects "the same privileges, immunities, and exemptions in respect to travel, or residence as may be there enjoyed by the citizens or subjects of the most favored nation" held to override a provision of the California constitution, and statutes enacted pursuant thereto, forbidding corporations chartered by the State from employing aliens); In re Lee Sing, 43 Fed. 359 (C. C. N. D. Calif. 1890) (same treaty held to override municipal ordinance requiring Chinese to move to a special segregated area); Cf. Jordan v. Tashiro, 278 U. S. 123 (treaty of 1911 with Japan held to permit ownership of land by a corporation owned by Japanese citizens)).1
Some of these early treaties also contained provisions guaranteeing freedom of religion. Thus the treaty with the Netherlands of 1782 (8 Stat. 32, 34, art. IV) provides that:
"There shall be an entire and perfect liberty of conscience allowed to the subjects and inhabitants of each party, and to their families, and no one shall be molested in regard to his worship, provided he submits as to the public demonstration of it, to the laws of the country."
Similar provisions are contained in the treaty with Sweden of 1783 (8 Stat. 60, 62, art. V), and the treaty with Prussia of 1785 (1 Stat. 84, 90, art. XI), as well as in numerous later treaties.
Another common provision of such treaties of commerce and friendship is one allowing consuls of a foreign state to apply to American courts for the delivery of deserters from the vessels of that state (e. g., convention with France of 1788, 8 Stat. 106, 112, art. IX). A like provision of the treaty with Russia of 1832 was held, in Tucker v. Alexandroff (183 U. S. 424 (1902)) to require the surrender to Russian authorities of a declarant alien." Closely related to the foregoing are provisions for extradition, the first of which was apparently that contained in the treaty with Great Britain of 1794 (8 Stat. 116, 129, art. XXVII), providing for the surrender by either party of all "persons" charged with stated crimes committed in the jurisdiction of the other. The power to enter into such treaties has, so far as appears, never been questioned. (See Holmes v. Jennison, 14 Pet. 540, 569-570, 586, 588 (1840); Matter of Metzger, 5 How. 176, 187-188 (1847); Factor v. Laubenheimer, 290 U. S. 276.) And it is well settled that, where
16 In other cases treaty provisions have been construed as inapplicable, but the fact that they would override State law if applicable was not doubted (e. g., Clark v. Deckebach, 274 U. S. 392 (1927) (provisions of treaties with England of 1815 and 1827 giving "merchants and traders" "protecti n and security for their commerce" not violated by ordinance denying to aliens the privilege of operating pool and billiard rooms); Terrace v. Thompson, 263 U. S. 197 (treaty with Japan held not to conflict with alien land law prohibiting ownership of land for farming purposes); Heim v. McCall, 239 U. S. 175 (treaty with Italy of 1871, guaranteeing Italian citizens equality of treatment and "constant security and protection for their persons and property" held not to preclude New York from providing that only citizens be employed on public work); Patsone v. Pennsylvania, 232 U. S. 138 (same treaty held not to preclude Pennsylvania from denying aliens privilege of killing game)).
17 The treaty provides further that when "subjects or inhabitants of either party should die in the territory of the other," liberty should be given "to bury them in the usual burying places or in decent and convenient grounds to be appointed for that purpose.' 18 For steps taken by the Continental Congress to obtain the arrest and delivery to the consul of a French captain, see 34 Journal of the Continental Congress, 212, 217-222. 19 Four justices dissented as to the construction of the treaty, holding that the alleged deserter had not been a member of the crew of a Russian vessel.
20 The action of President Adams in directing a judge to surrender one Jonathon Robbins to British authorities was approved in the House of Representatives after very extended discussion (10 Annals of Congress, 511, 515, 526, 531, 542-621 (1800)).
the treaty so provides, an American citizen lawfully can be extradited to some other country to be tried in accordance with the laws of that country for an offense committed there (Neely v. Henkel (No. 1), 180 U. S. 109, 123 (1901); Charlton v. Kelly, 229 U. S. 447, 465-469 (1913); see Valentine v. U. S. ex rel. Neidecker, 299 U. S. 5, 7 (1936)).
Mention should perhaps also be made of treaties giving consular officials certain judicial powers. Thus the convention with France of 1788 (8 Stat. 106) empowers French consuls in the United States to inventory, liquidate, and sell personal estates left by subjects or citizens of France, delivering the proceeds to the lawful heirs after paying any debts contracted (art. V), to adjudicate all disputes arising within the United States between subjects of France (art. XII), and to exercise police powers over French vessels (art. VIII). In Wildenhus's -case (120 U. S. 1, 17-18 (1887)), the Court said that if such a treaty gave a consular official exclusive jurisdiction over a homicide committed on a vessel in port, the treaty would preclude prosecution for the offense by a State court; it held, however, that the treaty in question did not preclude prosecution by the State of New Jersey. (See also The Betsey, 3 Dall. 5, 15.)
II. THE PRESENT PROPOSALS
A. Proposals designed to limit the scope of the treaty power
Probably the most far reaching of the present proposals are those designed to limit the subject matter to which treaties may relate. Those proposals are three. Sectoin 1 of Senate Joint Resolution 130 would provide that no treaty or executive agreement should be made "respecting the rights of citizens of the United States protected by this Constitution, or abridging or prohibiting the free exercise thereof." Section 2 of that resolution would prohibit any treaty from vesting in any international organization or foreign power any of the governmental powers of the United States. And the American Bar Association proposal would in effect provide that no treaty could have effect as internal law in the United States unless it came within the legislative powers delegated to Congress.
The framers of the Constitution carefully refrained from stating any limitation on the scope of the treaty power. As Madison stated in the Virginia Convention (3 Elliott's Debates 514-515):
"I think it [the treaty power] rests on the safest foundation as it is. The object of treaties is the regulation of intercourse with foreign nations, and is external. I do not think it possible to enumerate all the cases in which such external regulations would be necessary. Would it be right to define all the cases in which Congress could exercise this authority? The definition might, and probably would, be effective. They might be restrained, by such a definition, from exercising the authority where it would be essential to the interest and safety of the community. It is most safe, therefore, to leave it to be exercised as contingencies may arise." (See also id., 363, 504 (Randolph).)
In this connection it should be emphasized that since the treaty power is exclusively Federal, and is denied to the States, any limitation on that power would weaken the United States as a whole in its dealings with other nations. As Justice Sutherland states in United States v. Curtis-Wright Corp. (299 U. S. 304, 318):
"As a member of the family of nations, the right and power of the United States in that field are equal to the right and power of the other members of the international family. Otherwise, the United States is not completely sovereign." Since any constitutional limitation of the scope of treaties would weaken the position of this Nation at the international bargaining table, it is incumbent on the proponents of such a limitation to show a definite and compelling need for it. That showing is not made by pointing to particular treaties, not yet ratified or even submitted for ratification, which rightly or wrongly are said to be objectionable. It would be as appropriate to urge that because Congress may pass, and doubtless has passed, some bad laws it should be deprived of legislative power. If the United Nations conventions to which objections have been made by some of the proponents of these amendments are as bad as they are said to be, they will presumably not be ratified. And certainly there is no warrant for lightly assuming that the President and two-thirds of the Senate, all of whom are bound by oath to support the Constitution, would seek to subvert it. It is
Charlton v. Kelly holds that provisions for extradition of all "persons" charged with crime includes citizens of the asylum country; it points out that the majority of extradition treaties make an exception for citizens, but that many contain no such exception.
perhaps not amiss to repeat Madison's answer to a comparable suggestion (3 Elliott's Debates 515):
"It is to be presumed that, in transactions with foreign countries, those who regulate them will feel the whole force of national attachment to their country. The contrast being between their own nation and a foreign nation, is it not presumable they will, as far as possible, advance the interest of their own country?"
Two general propositions seem to be the foundation for the assertion that the treaty power has in recent years become a new kind of threat to our liberties and constitutional system. The first is the suggestion that the "use of the treaty as an instrument of domestic legislation" (statement of Senator Bricker filed with the subcommittee of the Senate Committee on the Judiciary, May 21, 1952) is a novel development which needs to be stopped. It is said that "until recently, treaties were restricted to their traditional field of agreements between sovereign nations imposing duties and obligations on the contracting states and not on individual citizens" (American Bar Association report of standing committee on peace and law through United Nations, February 1, 1952, p. 11 (hereinafter referred to as ABA committee report)). The facts are directly to the contrary. The framers of the Constitution fully recognized that treaties could be laws which would have domestic application and control the activities of citizens and residents of the United States. One of the principal occasions for the drafting of the new Constitution was that States, by their domestic legislation, were violating treaties and thus risking international disputes. To meet that problem, they provided that treaties should be the supreme law of the land, that State judges should be bound by them, and that Federal courts should have jurisdiction of cases or controversies involving individuals which arose under them. It was because treaties were "to have the operation of laws" that it was urged they should be approved by the House as well (2 Farrand, Records of the Federal Convention, 538), and the same consideration was urged to justify the participation of the Senate in the treaty-making process (The Federalist, No. 75 (Hamilton)). And the substance of many of the early treaties (see discussion in point I C) clearly shows how frequently and widely they affected individual rights of citizens as well as resident aliens, rights which otherwise would be the subject of State legislation.
The second suggestion is the fear of a "superstate" into which this Nation is said to be in danger of being absorbed. Contentions that under the treaty power the President and Senate could destroy the United States or undermine its basic constitutional structure are not new. For example, fears that the President and 10 Senators could by treaty dismember the United States (3 Elliott's Debates 221, 610) or give up the rights of navigation in the Mississippi (of vital interest to Kentucky, then a part of Virginia) (3 Elliott's Debates 341-365) were among the principal objections urged to the proposed Constitution at the Virginia convention. (See also 4 Elliott's Debates 115 (North Carolina); 2 Farrand, Records of the Federal Convention, 297.) Similarly in the debate in the House in 1796, fears were repeatedly voiced that the treaty power could absorb all legislative power (e. g., 5 Annals of Congress 467) and could amend the Constitution (id., 537). The answer to such contentions, then as now, has been that the President and Senate can "make no treaty which shall be repugnant to the spirit of the Constitution" (3 Elliott's Debates 507 (Nicholas); see id., 504 (Randolph)). The treaty power is not wholly unlimited. Treaties cannot violate specific prohibitions of the Constitution, nor can they subvert its essential nature. These limitations are more fully discussed in connection with specific proposals to which they relate.
Section 1 of Senate Joint Resolution 130 would prohibit treaties "respecting," or "abridging or prohibiting the free exercise" of, "rights of citizens of the United States protected by this Constitution." The section is urged primarily as necessary to prevent abridgment of the essential civil liberties of the Bill of Rights. It is said that the Constitution as it stands, although protecting those liberties from invasion by Congress or the States, does not protect them from invasion by exercise of the treaty power. We believe that is demonstrably not so. The courts have repeatedly emphasized that a treaty may not offend specific prohibitions of the Constitution. The classic statement is that of Geofroy v. Riggs (133 U. S. 258, 267 (1890)):
22 One of the early versions of the supremacy clause provided that treaties should be the sunreme law of the States "so far forth as those Acts or Treaties shall relate to the sald States or their Citizens" (1 Farrand, Records of the Federal Convention, 243-245).