That is a statement of what we acquired in pertinent part. Additional provisions relating to the interests of the United States in the Canal Zone are to be found in articles VI, VIII and XXII of the 1903 treaty, which concern the rights of private landholders in the area granted to the United States by the Republic of Panama, and the property of the Panama Railroad Company and the new Panama Canal Company. It is recognized that under these provisions the Republic of Panama retained titular sovereignty over the Canal Zone. The United States is not the sovereign, but it has jurisdiction over the Canal Zone; that is to say that the United States has all the rights, power, and authority which it would possess and exercise if it were the sovereign of the Canal Zone. In addition, the United States has title to substantial lands, buildings, and facilities in the zone. According to article II, section 2, clause 2 of the Constitution, the President has the power to make treaties by and with the advice and consent of the Senate provided two-thirds of the Senators present concur, and article VI, clause 2 provides that treaties shall be the supreme law of the land. It has been established since Foster v. Nielson, a Supreme Court decision in 1829, that whenever a treaty operates of itself and does not merely constitute an undertaking to enact legisla tion, it is the equivalent of an act of the legislature. There are two other decisions which apply: Geofroy v. Riggs and Asakura v. Seattle, Supreme Court decisions of 1890 and 1924. These have taught that the treatymaking power of the United States extends "to all proper subjects of negotiation between our Government and other nations," although it does not extend "so far as to authorize what the Constitution forbids." To the same effect are United States v. Curtiss-Wright Corp., and Reid v. Covert, two other Supreme Court decisions. Foremost, among those Constitution provisions, are those designed to protect the rights of citizens from encroachment by the Government-that is citing Reid v. Covert. 127 CONSTITUTIONAL QUESTIONS RAISED CONCERNING SELF-EXECUTING The question raised in the present context is whether a treaty would do something "prohibited by the Constitution" if it seeks to be selfexecuting in an area in which Congress has legislative jurisdiction. Here the problem posed is whether a treaty can dispose of the territory and property of the United States in the face of article IV, section 3, clause 2 of the Constitution, which gives the Congress power to do so. That focuses right on the question. It is not in my prepared testimony, but I think it might be helpful to read the article IV, section 3. clause 2: "The Congress shall have the power to dispose of and make all needful rules and regulations respecting the territory or other property belonging to the United States. Nothing in this Constitution shall be so construed as to preiudice any claims of the United States or of any particular State." The first part of the first clause is what is important. That gives power to Congress to transfer territory, and we are taking the position that you can do it by treaty without going to the full Congress. Even brief reflection shows that the application of the supreme law of the land clause in article VI to treaties would be extremely limited, if it were restricted to those areas in which Congress does not have power to legislate. The courts have concluded that this is not so and that the mere existence of a congressional power to legislate in the field does not preclude a treaty from being self-executing. Foster v. Nielson, the case I cited a moment ago, recognized this by equating a treaty to an act of the legislature. The courts have given self-executing effect to a number of treaties which dealt with matters over which Congress has legislative jurisdiction under article I, section 8, such as claims against the United States, customs inspections, and trademarks. On the other hand, it is generally assumed that the specific powers granted to the House of Representatives and the Congress in fiscal matters-article I, section 7, clause 1, and article I, section 9, clause 7-money bills and appropriation power, preclude making treaties self-executing to the extent that they involve the raising of revenue or the expenditures of funds. Were it otherwise, the President and Senate could bypass the power of Congress, and in particular, of the House of Representatives over the purse strings. That is to be carved out and set aside for purposes of this testimony and to answer the question presented. It is our conclusion that this consideration does not apply to article IV, section 3, clause 2 of the Constitution. In other words, the power of Congress to dispose of the territory and property of the United States does not have the same unique and prominent status as the fiscal power of the Congress. To begin with, article IV, section 3, clause 2 uses the same phraseology, "Congress shall have power," as does article I, section 8, and we have shown above that the legislative powers vested in Congress under that section do not preclude the making of self-executing treaties. The conclusion that this clause is not designed to foreclose the conclusion of self-executing treaties disposing of the territory and property of the United States gains strong support from the records of the proceedings of the Constitutional Convention. The pertinent debates indicate that the members of the Convention were fully aware of the possibility that a treaty might dispose of the territory or property of the United States. TREATY POWER FEARS AT CONSTITUTIONAL CONVENTION PROCEEDINGS Much of the opposition to the treaty power of the United States and the requirement of a two-thirds majority in the Senate were based on fears that the Senate might give away territorial rights of the United States. I wish to mention a few of the pertinent remarks. Thus, Colonel Mason observed, "The Senate by means of a treaty might alienate territory," and so forth, "without legislative sanction." Since you have copies of my prepared statement, I will not give all of the citations. They are from well known authorities on the Constitutional Convention. That quote in particular is from Farrand. Later, Messrs. Williamson and Speight moved "that no treaty of peace affecting territorial rights should be made without the concurrence of two-thirds of the Members of the Senate present." Mr. Gerry felt that "in treaties of peace, a greater rather than less proportion of votes was necessary than in other treaties. In treaties of peace, the dearest interests will be at stake, as the fisheries, terri'tories, and so forth, and there is more danger to the extremities of the continent of being sacrificed than in any other occasion." The citation for that is given. Sherman and Morris, two members of the Convention, proposed but did not formally move the following proviso: But no treaty of peace shall be made without the concurrence of the House of Representatives, by which the territorial boundaries of the United States may be contracted, or by which the common rights of navigation or fishery recognized to the United States by the late treaty of peace, or accruing to them by virtue of the laws of nations may be abridged. Now that was not offered. It was just a proposal, that would bring the House into it. The awareness of the Founding Fathers that the Constitution authorizes self-executing treaties disposing of the territory and property of the United States also appears from the following amendment to the Constitution proposed by the Ratifying Convention of Virginia-and this is from the Ratifying Convention of Virginia: 7th. That no commercial treaty shall be ratified without the concurrence of two-thirds of the whole number of the members of the Senate; and no treaty ceding, contracting, restraining, or suspending, the territorial rights or claims of the United States, or any of them, on their, or any of their rights or claims to fishing in the American seas, or navigating the American rivers, shall be made, but in cases of the most urgent and extreme necessity; nor shall any such treaty be ratified without the concurrence of three-fourths of the whole number of the members of both houses respectively. Of course, that never became part of the Constitution. Then a letter from Hugh Williamson, a delegate to the Convention. from North Carolina dated June 2, 1788, reminded James Madison of the background of the treaty clause and the requirement of a twothirds majority in the Senate: "*** It is said that some antifed"— and I didn't know they used that term back as far as 1788-"It is said that some antifed in Maryland on the last Winter fastened on the Ear of Gen. Wilkinson who was accidentally there and persuaded him that in case of a new government the Navigation of the Mississippi would infallibly be given up. Your Recollection must certainly enable you to say that there is a Proviso in the new sistem which was inserted for the express purpose of preventing a majority of the Senate, or of the States which is considered as the same thing, from giving up the Mississippi. It is provided that two-thirds of the Members present in the Senate shall be required to concur in making Treaties, and if the southern states attend to their Duty, this will imply 2/3 of the states in the Union, together with the President, a security rather better than the present 9 States, especially as Vermont & the Province of Main"-Maine probably needs some providence right now with the lawsuits it is having, but he does say "Province of Main"-"may be added to the Eastern Interest, and you may recollect that when a Member, Mr. Willson, objected to this Proviso, saying that in all Govts. the Majority should govern, it was replyed that the Navigation of the Mississippi, after what had already happened in Congress, was not to be risqued in the Hands of a meer Majority and the Objection was withdrawn." [Farrand, op. cit., vol. 3, p. 306–307.] I would point out the somewhat antiquated spelling that appears in the quote. That is the way we found it. The text of the Constitution and its history thus support the proposition that a treaty disposing of the territory and property belonging to the United States can be self-executing. SUPREME COURT DECISIONS CONCERNING ARTICLE IV I am aware of a number of decisions of the Supreme Court holding that article IV, section 3, clause 2 of the Constitution is of an exclusive nature, and that some have argued from those decisions that treaties disposing of property of the United States must be implemented by legislation enacted under that clause of the Constitution. It should be noted, however, that the decisions declaring article IV, section 3, clause 2 to be exclusive related to the authority of the executive and judicial branches to dispose of the territory or property of the United States. None of them dealt with the question here involved, the power of the treatymaking authority to make such disposition. To the contrary, as shown in my opinion, which was introduced at the beginning of my testimony, there is a substantial body of Supreme Court decisions dealing with the Indian treaties which holds that a treaty may dispose of territory belonging to the United States without implementing congressional legislation under article IV, section 3, clause 2. Of those cases, Holden v. Joy, decided in 1872 by the Supreme Court, appears the only one in which the question was raised whether article. IV, section 3, clause 2, of the Constitution precludes such a treaty from being self-executing. The Court conceded that the question was immaterial in the case at bar because Congress had actually implemented and ratified that particular treaty. Nevertheless, it rendered the following strong dictum: “... [S]till it is insisted that the President and Senate, in concluding such a treaty, could not lawfully convenant that a patent should issue to convey lands which belonged to the United States without the consent of Congress, which cannot be admitted. On the contrary, there are many authorities where it is held that a treaty may convey to a grantee a good title to such lands without an act of Congress conferring it, and that Congress has no constitutional power to settle or interfere with rights under treaties, except in cases purely political. Much reason exists in view of those authorities and others which might be referred to. for holding that the objection of the appellant is not well founded, but it is not necessary to decide the question in this case, as the treaty in question has been fully carried into effect, and its provisions have been repeatedly recognized by Congress as valid." That, gentlemen, is a dictum and not a part of the ratio decidendi of the decision. In addition to the Indian treaty cases, in United States v. Percheman, decided in 1833 by the Supreme Court, the Court held self-executing certain clauses of the Florida Treaty with Spain which related to the regulations of property rights in newly acquired territory. Those provisions of the treaty thus came within that part of article IV, section 3, clause 2, which gives Congress power to make all need ful rules and regulations respecting the territory of the United States. If a treaty which deals with that part of article IV, section 3, clause 2, can be self-executing, the same reasoning applies to a treaty coming within another part of that clause. SELF-EXECUTING TREATIES CONFERRING U.S. TERRITORY PRECEDENTS The final point which I wish to make is that throughout our history, Presidents acting with the advice and consent of the Senate have made numerous self-executing treaties transferring territory or property belonging to or claimed by the United States. One example, cited in the opinion, is the 1819 Florida Treaty with Spain. Under that treaty the United States ceded all of its territory beyond the Sabine River in Texas to Spain in return for the cession of the Spanish territories of east and west Florida. While there has been some dispute over some of the relevant boundaries, the congressional debates, as well as President Monroe's annual message to Congress, make it clear that many considered the action to be an outright cession of American territory in exchange for Spanish territory. We give the authority there for that statement. There was no statute authorizing this cession of American territory. There have been numerous other treaties which have transferred U.S. territory or compromised U.S. claims. See, for example, the United States-Great Britain Treaty of 1842, which I cite; and the United States-Great Britain Treaty in regard to limits westward of the Rocky Mountains of 1846, known as the Oregon Treaty In conclusion, the text and history of the Constitution, as well as the decisions of the Supreme Court and historical treaty practice, all support the opinion I recently rendered that property of the United States may be transferred by treaty absent statutory authorization. Thank you, Mr. Chairman. If you or other members of this committee have questions, I will be pleased to attempt to answer them. [Attorney General Bell's prepared statement follows:] PREPARED STATEMENT OF ATTORNEY GENERAL GRIFFIN B. BELL Mr. Chairman, I am pleased to appear before your committee to testify on and discuss with you a problem arising in connection with the Panama Canal Treaty. The question is whether the treaty making power of the United States vested by the Constitution in the President, by and with the advice and consent of twothirds of the Senate, can dispose of the proprietary interests of the United States in the Panama Canal Zone by treaty alone, or whether such action requires in addition legislation authorizing, approving, or actually effectuating such transfer. The principal provisions governing the rights of the United States in the Panama Canal Zone are to be found in articles II and III of the Hay-Bunau Varilla Treaty of 1903. Pursuant to those articles, the Republic of Panama granted to the United States “* * * in perpetuity the use, occupation and control of a zone of land and land under water for the construction, maintenance, operation, sanitation and protection of said Canal of the width of ten miles extending to the distance of five miles on each side of the center line of the route of the Canal to be constructed." Art. II. And 46 ** all the rights, power and authority within the zone mentioned and described in Article II of this agreement and within the limits of all auxiliary |
