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Treaty-Making Power," 1 American Journal of International Law 636, 641 (1907). Similarly, Judge Cooley wrote: "The full treaty-making power is in the President and the Senate, but the House of Representatives has a restraining power upon it in that it may in its discretion at any time refuse to give assent to legislation necessary to give a treaty effect." T. Cooley, General Principles of Constitutional Law (New York: 3d ed., 1898), 175. Further discussion and examples cited by Cooley and others make clear that legislation is needed to effectuate a treaty when what is stipulated to be done requires the exercise of a power granted exclusively to the Congress. Ibid; Crandall, op. cit., 132, 145–46.

This issue first became prominent upon ratification of the Jay Treaty in 1976, which, inter alia, contained provisions for the payment of money by the United States. Butler, op. cit., 421-30; Tucker, op. cit., 205-07. In Article I, sec. 9, cl. 7, it is provided that "[n]o money shall be drawn from the Treasury, but in Consequence of Appropriations made by law; . . . ." Inasmuch as the supremacy clause made both congressional statutes and treaties "laws" it presumably could have been argued by the President and his associates that upon ratification the treaty became a law and the provision for payment in effect an appropriation. But in fact this argument was not made, the President and Secretary of the Treasury Hamilton contending that since the treaty had been ratified it was incumbent upon the House of Representatives to vote the appropriation. Crandall, op. cit., 119-28. After lengthy debate the House did vote the money but only after attaching a clause which adopted the views of those, like Madison and Gallatin, who argued that when a treaty contained stipulations on any of the subjects committed by the Constitution to Congress the stipulations could not be executed until by independent action Congress had passed implementing legislation. 5 Annals of Congress 771-72, 4th Cong., 1st sess. The practice since with regard to the obligation of funds has been that independent action necessary, Tucker, op. cit., 205-237, and that in at least one instance, the Mexican Commercial Treaty of 1883, the House declined to appropriate any funds.

Similarly, with regard to treaties which modify and change commercial tariff and other arrangements, the practice has been to submit the changes to Congress for the enactment of legislation making the changes. Cf. sec. 104 of the Revenue Act of 1799, 1 Stat. 701, enacting changes provided for in the Jay Treaty. 1 Stat. 411. A bitter debate in Congress, however, was precipitated by ratification of a treaty with Great Britain in 1815, which provided for reciprocal duties on British vessels and articles and on American vessels and articles. President Madison requested such legislation as would be necessary to carry out the treaty, but the Senate believed that an 1815 statute permitted the President to reduce duties on goods of nations which did not discriminate against United States goods; the House felt that implementing legislation was required. The result was compromise legislation which had the effect of reducing duties while leaving in doubt whether the law did the reducing or merely declared that the reductions had taken place by the treaty. The Senate conferees did, however, stipulate that some treaties made in pursuance of the Constitution might "call for legislative provisions to secure their execution," although they thought Congress : bound to provide for the execution. What these types of provisions might be the Senators did not indicate, but the House conferees noted that they believed, and that the Senators seemed to concur, that legislative enactments were necessary to carry into execution all treaties which contained "stipulations requiring appropriations, or which might bind the nation to lay taxes, to raise armies, to support navies, to grant subsidies, to create States, or to cede territory; . . .” Crandall, op. cit., 137-39; Annals of Congress 1019, 14th Cong., 1st sess. [emphasis supplied].1


If it be the case, then, that congressional implementing legislation is required when a treaty provision touches upon a subject which the Constitution commits to the exclusive jurisdiction of Congress, it should follow that a treaty stipulation ceding property to another country would require legislative implementation. The Court has indicated that Congress' power under Article IV, sec. 3,

1 The reference is, of course, only in passing, but much the same language, including the mention of treaties which would 'alienate territory,' was included in another House report in 1868. H. Rept. No. 37, 40th Congress, 2d session., 2 Hinds' Precedents of the House of Representatives (1907), sec. 1508. The matter was directly confronted once in the House on the motion of Henry Clay with regard to a treaty settling certain boundary disputes. Clay introduced a resolution contending that Congress must enact legislation pursuant to its power to dispose of territory; the resolution was debated but never voted on. Id., sec. 1507.

cl. 2, is exclusive Sere v. Pitot, 6 Cr. (10 U.S.) 332 (1910); American Ins. Co. v. Canter, 1 Pet. (26 U.S.) 511 (1828); United States v. Gratiot, 14 Pet. (39 U.S.) 526 (1840); Cross v. Harrison, 16 Har. (57 U.S.) 164 (1853). However, in Holden v. Joy, 17 Wall. (84 U.S.) 211, 247 (1872), the Court said: "It is insisted that the President and Senate, in concluding such a treaty, could not lawfully covenant 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." Against this language may be imposed two objections. The language was not necessary to the decision since the Court in fact found a congressional act in effect recognizing the validity of the particular cession and none of the authorities cited is precisely on point.

There seems little doubt that examples may be found in which the United States had disposed of property by treaty without an authorizing act of Congress. That such actions may have taken place in the past is, of course, no warrant for following an incorrect practice in future cases, if in fact the conclusion reached here is the correct practice. In any event, some examples are explainable as the settlement of disputed international boundary claims by treaty, involving some compromise and some loss of claimed property, but since only a claim was at issue and not territory actually owned, these have only a limited relevance if any at all. Other examples are of dubious validity and often in fact support the contrary of that for which they are cited. Indicative of this type of example is the Webster-Ashburn Treaty of 1842, by which the United States agreed to cede certain property in Maine and Massachusetts to Great Britain. The property did not belong to the United States but rather to those States and the treaty was conditioned upon the assent of those States and the payment of compensation to them. Congress in 1843 did appropriate funds which were paid. Congress did not actually authorize the transfer, inasmuch as there was no necessity of an authorization. It had not bought the property for the United States Government; it had rather compensated the States for the loss occasioned when the States consented pursuant to the treaty.

Again, the 1963 Chamizal Treaty is often cited as an example of cession of territory by treaty. The land ceded belonged to private persons, not to the United States, and the treaty itself recognized that some legislative action might be required to complete the transfer. The legislation authorized the acquisition of the property "for transfer to Mexico as provided in said convention . . .," about as clear an authorization for both acquisition and transfer as one could hope for. Public Law 88-300, 78 Stat. 184, § 1.

The issue discussed herein has never been definitively resolved, either by judicial decision or by a course of consistent practice, although with regard to the latter the House has generally over the years continuously insisted on its right to be consulted and to legislate to implement a treaty which calls for the doing of something committed by the Constitution to Congress. Therefore, it is arguable that conclusions on this matter must be based on logical analysis and extrapolation rather than on principle derived from precedent. The conclusion reached here, that conveyance of the Panama Canal property to Panama by treaty would not be effectual without implementing legislation, is based on the interpretation set forth above. These in summary are: (1) that the Constitution has vested powers in separate organs of the Federal Government which cannot be exercised by other organs; (2) that the treaty power is as subject to this vesting as is any other power granted; (3) that a treaty provision properly taking account of matters within the confines of the treaty power may provide for the doing of certain things although the power to do those things is vested elsewhere in the Federal Government, but, that when it does, this provision remains unexecuted until the body vested with the power acts; (4) that the Constitution vests Congress with power to dispose of property belonging to the United States; and (5) that while a treaty may properly provide for the conveyance of such property an act of Congress is required to execute this provision. To conclude otherwise, it is believed, would place certain provisions of the Constitution above others and would raise difficult problems reconciling prior determinations with regard to treaties dealing with other subjects as to which the power to act is vested in Congress, such as tariff laws and appropriations. JOHNNY H. KILLIAN, Legislative Attorney.


Senator ALLEN. The subcommittee will please come to order. We have one witness left over from this morning's session, Judge Crowe. Mr. Crowe, we are delighted to have you come and give us the benefit of your experience and your knowledge in this matter. We invite you to proceed in such fashion as you may choose.


Judge CROWE. Thank you, Mr. Chairman, and distinguished members of the committee. I will have to apologize for not having a prepared statement. I am retired.

Senator ALLEN. That is quite all right.

Judge CROWE. I am retired and I have no secretary or staff, so my comments today will be off the cuff. I retired because of old age. I am somewhat like the old judge I heard at the judicial conference, who said that old age had made him a lot more moral than the Methodist Church ever did. So I am in that position.

I am very happy to be here and to be able to present something about my experience in the Canal Zone. I was there for 25 years as judge. I was appointed for an 8-year term by President Truman, and then reappointed by President Kennedy. Then no one was appointed to take my place, so I stayed on under operation of the statute until my successor was appointed and qualified. That was not done by President Nixon nor President Ford.

I resigned as of the 30th of April after, as I say, serving 25 years. I entered on duty there in August of 1952. I had a very varied experience. I learned to speak Spanish while I was there and got to know a lot of Panamanian people. I think that many of them are splendid people. I am a great admirer of many of them, and I feel that many of them are quite competent.

There was a good deal of discussion this morning as to whether or not they would be able to operate the canal. Of course, there are some men who have been educated in the American schools and who have high competency. Whether or not as a nation they could operate the canal, of course, is a matter of considerable speculation.

I want to bring to the attention of this committee the condition of the court at present. I think it might emanate from the fact that the Department of State is advising the President to the contrary. That is the need for a judge.

Since I resigned there has been no appointment of a judge, although there are a number of applicants. They have been using a distinguished judge from Florida, Judge Mertens, who has been sitting in criminal cases only. He has only been able to go 2 or 3 days at a time periodically. As a consequence, the civil side of the docket has been completely unattended to. The people are suffering a great deal by reason of the fact that there is no judge there.

We have a pretty good sized court. As a matter of fact, it was the largest docket of any single judge in the Federal system under the American flag. There were about 400 criminal cases a year and 400 civil cases. The fact that there is no judge, of course, leaves those people in considerable difficulty.

I might remark upon the Admiralty situation in the event that the Congress or the Executive with the treaty powers decide to transfer the canal to Panama.

The Admiralty jurisdiction of that court is equivalent to the Admiralty jurisdiction of a district court in the United States, although it is a territorial court and the judge is not a title III judge. He comes under title IV and is only appointed for a term of years. He has equivalent Admiralty jurisdiction under the Canal Zone Code, with judges in the United States.

Panama has no Admiralty courts nor any case law concerning Admiralty. Whenever a question in Admiralty arises it is decided under what is called a Panamanian Commercial Code. This means that the Admiralty bar of the world, whose members are accustomed to appear before courts that recognize the agreements adopted by international Admiralty conventions, would be at a disadvantage and the causes of their clients would suffer.

The ships of the great maritime trading nations pass through the Panama Canal daily. If these vessels are attached and harassed in courts that do not conform to the international practice, that has been the product of many years of shipping experience, great injustice no doubt will occur.

Some 60 or 70 Admiralty cases a year come up in the Canal Zone courts. Many of them involve millions of dollars. The Canal Zone Admiralty lawyers are greatly concerned, and some of the Panamanian attorneys who practice Admiralty in the Canal Zone Court have gone to President Lakas recently expressing their concern and hoping that some study will be made. Just what will be done I do not know. They received no assurance from him that that would be done, and so the Admiralty situation will be very difficult and very bad.

In criminal cases in the Republic of Panama there are no jury trials except in the cases of homicide. In such cases there is a jury composed of seven persons, but there is no method of challenge in selection as under the U.S. laws that prevail in the Canal Zone.

We do only have the Canal Zone Code and a bill of rights in that code which contains the U.S. constitutional guarantees, but the Federal rules of criminal procedure of the United States are enforced in the zone as well as the civil rules.

In the Canal Zone there are clean jails and a modern penitentiary. U.S. citizens who are sentenced to terms of confinement of more than 6 months are transferred to the Federal institutions in the United States so that they may be nearer to their families and that their rehabilitation may be better effectuated. There is an excellent system of probation and parole in the zone.

We have fine officers who carefully look after the parolees. They are diligent and well trained. They soon will become a part of the Federal system. Legislation is in the offing at the present time.

In Panama the penal institutions are deplorable. They are crowded and dirty and the prisoners are fed poorly. There is no system of probation and parole and bail is rarely available. Many prisoners have no hearings of any kind for months and lie in jail irrespective of their guilt or innocence.

Americans who have lived in the zone for many years feel that American citizens who are caught and charged with crimes in Pana

ma are dealt with more harshly than Panamanians, due to the strong feelings that have grown up over the years. There is no reason to think that this will change if and when Panama is in control of law enforcement in the zone area.

It is planned or discussed that a number of Americans will, of course, have to reside there because of their expertise in handling the Canal Zone and the engineering problems and the shipping difficulties. If those people are there they will be exposed, of course, to this type of jurisdiction of which I speak.

In civil cases in the Canal Zone we use the Federal rules of civil procedure and the Canal Zone Code, especially drafted by Congress for the zone. Great attention is paid to the service of process. The greatest of diligence is used to see that the rights of the parties are safeguarded. The court is open for the filing of cases and the issuance of needed process 24 hours a day, 7 days a week.

In Panama there are no civil jury trials. I am advised that all cases are by deposition, taken in such a way that there is no opportunity for confronting witnesses and conducting a fruit ful cross-examination. Criminal and civil liability in actions in tort are interlocked so that there is no civil liability unless there is criminal liability.

Law enforcement in the Canal Zone is by a highly trained, carefully selected police force that is completely separate from the military. I suspect that Governor Parfitt touched upon that this morning. Unfortunately, I missed part of his statement. It is a fine organization of men who are well qualified, as well as women now. They have some excellent women on the police force.

There are, of course, military police drawn from the military units assigned to the zone. These people police the military encampments and military personnel only.

In Panama there is no separate constabulary. It is a military dictatorship. All policing is done by members of the Guardia Nacionalthat is, the Panamanian Army. Each one of the members of the army has full powers of arrest just as though he were a civil constable or a police officer.

They also do have a secret police organization called the "Deni."

The 10,000 or 11,000 soldiers of Panama have full powers of arrest and law enforcement throughout the country. The general said this morning that there were only about 8,000 in the military. Panamanians whom I know and with whom I have talked on many occasions seem to think that there are many more-that there are about 10,000 or 11,000.

There are no sheriffs, no city police, nor State police, nor anybody of that nature. Political prisoners are not uncommon and exile has been used against prominent citizens without trial.

That is the type of law enforcement that you will find.

I have a clipping here which is very interesting, on that particular score, that appeared in the Miami Herald recently. It was reported on Tuesday, May 24, 1977 concerning one Eisenman. Mr. Roberto Eisenman and 10 others were critical of the method that the Government of Panama was using in handling the beef situation. These people were raising beef and went up into the interior and protested against this method.

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