unmentioned by Dean Pollak: "A broad statutory provision will not apply to a matter specifically dealt with in another part of the same act." Then there is the complementary rule-express mention implies exclusion of the unmentioned-or as held by the Supreme Court, "When a statute limits a thing to be done in a particular mode, it includes the negative of any other mode." Although the exclusion of the treaty power was not before the Court, it tacitly ratified the application of the foregoing rules when it stated that Article IV "implies an exclusion of all other authority over the property which could interfere with this right * From the beginning such rules of construction were respected; Justice Story recommended the "excellent summary of the rules for construing statutes" in Bacon's Abridgment. If there is any doubt as to the legislative intent-Deputy Assistant Attorney General Ralph E. Erickson testified in 1971 (before Panama became a political issue) that the issue "is not altogether free from doubt."-such rules serve as a guide to construction. Such "doubt" counsels against invasion of a power explicitly conferred on Congress; a clear case for the "concurrent power" is needed in the teeth of the express grant.

The treaty power is given to the President "with the advice and consent of the Senate." Without question the House is thereby excluded from participation in treaty making. By parity of reasoning, the "Congress shall have power to dispose" equally bars its exercise by the President and Senate. It is no adequate answer to say, as does Dean Pollak, that the "Congress shall have power" phrase "syntatically, does not preclude concurrent jurisdiction in the President and Senate as treaty makers," (Pollak 4), for grammatical syntax must yield to established canons of construction which show that Article IV “implies an exclusion of all other authority." One who disputes the results to which traditional canons lead has the burden of proof to show they are inapplicable.

Dean Pollak leads off with an appeal to John Marshall's remarks as a young Congressman on the Jay Treaty. In considering these and other treaty remarks, it is constantly necessary to distinguish between the treaty making process and any subsequent exercise of power by the House. That distinction was clearly drawn by Marshall. Washington had submitted the treaty for ratification to the Senate along with some instructions to the Miniser who had negotiated it; but he refused them to the House on the ground that it had no right to participate in treaty making.' Among the objections by the House, to quote Albert Bevereridge's "Life of John Marshall," invoked by Dean Pollak, were that though the "treaty regulated the House had not been consulted," that though "the raising and expending of public money must originate in the House," it had been ignored. The question raised, said Beveridge, was "whether a commercial treaty, or an international compact requiring an appropriation of money ⚫ could be made without the concurrence of the House as well as the Senate.'

commerce

To this Marshall replied that it was "more in the spirit of the Constitution' for the National House to refuse support after ratification than to have a treaty 'stifled in embryo' by the House passing on it before ratification." Exclusion of the House from treaty making did not mean for Marshall that the House would be denied its function after ratification. Dean Pollak reads this as a "tactical concession" that was "not at odds with Marshall's constitutional definition of the potential scope of the treaty power." (Pollak 3n). If this was merely a "tactical concession" then his entire statement was a political "tactic", for Marshall gave no clue as to when he spoke as politician and when as constitutional sage.

Attorney General Griffin B. Bell conceded in his statement before the Senate Foreign Relations Committee, September 29, 1977, pp. 4-5, that the Senate and President may not "bypass the power of Congress and in particular the House of Representatives" in the "raising of revenue or expenditure of funds." What distinguishes "all bills • shall originate in the House" from "The Congress shall have power to dispose?" The thinness of the distinction is underlined by the State Department's concession that "treaties may [not] impose taxes." Nothing in the Article I, 8(1) "The Congress shall have power to lay and collect taxes" distinguishes it from the Article IV "The Congress shall have power to dispose."

JUDICIAL DECISIONS

Boundary dispute cases

The "boundary dispute" cases invoked by the administration are tacitly abandoned by Dean Pollak, presumably because, as he quotes Justice Story:

"In the case of a contested boundary, there is no pretence to say that an ascertainment of the true boundary involves the question of cession (Pollak, Appendix A,

This was the ground upon which I dismissed those cases.

But Dean Pollak's reference to Story was for the purpose of showing his awareness "that the treaty power includes authority to cede American Territory. Governor Edward Everett of Massachusetts had written Story with respect to the Northeastern boundary, that in his words presented "a question not of ceding an admitted portion of Maine, but of ascertaining the boundary between the British territory and ours." (Pollak, Appendix, p.1) As we have seen, Story concurred in this view. Everett sought Story's advice regarding a resolution by the Massachusetts legislature "That no power delegated by the Constitution to the government of the United States authorizes them to cede to any foreign nation any territory lying within the limits of either of the States of the Union." Id., (emphasis added). Of course, Story rejected this drastic restriction, and added that Marshall "was unequivocally of opinion, that the treaty-making power did extend to cases of cession of territory, though he would not undertake to say that it could extend to all cases. *" Id. 3. Presumably what Marshall had in mind were the boundary disputes that called for settlement in his time. I would not deny that the President and Senate may enter into a treaty for the cession of territory; what is disputed is whether such a treaty may be "self-executing," without the subsequent consent of Congress under Article IV. Nor can Story's letter be read to repudiate the statement in his Commentaries that "The power of Congress over the public territory is clearly exclusive and universal."

"10

Indian treaty cases

(1) Dean Pollak follows the administration view of Jones v. Mechan, 175 U.S. 1, 10 (1899), quoting "that a good title to parts of the lands of an Indian tribe may be granted to individuals by a treaty between the United States and the tribe, without any act of Congress." (Pollak 10). But there the grant was made by the tribe, not the United States. The treaty had “set apart from the tract hereby ceded [by the tribe] a reservation of six hundred and forty acres" for an individual Indian, and the issue was what kind of title did he take. The Court, as I showed, quoted from an opinion of Attorney General Roger Taney:

"These reservation are excepted out of the grant made by the treaty, and did not therefore pass with it; consequently the title remains as it was before the treaty, that is to say, the lands reserved are still held under the original Indian title.' The Court held that "the reservation, unless accompanied by words limiting its effect, is equivalent to a present grant of complete title in fee simple."" Dean Pollak states that "the Taney opinion was discussed by the Court and rejected as not controlling." (Pollak 11n). Only a not relevant portion of the opinion was held not controlling, the Taney clause immediately following the above quotation: "and therefore the Indian occupants cannot convey them to individuals, and no valid cession can be made of their interest but to the United States."" (emphasis added). Within a year of Taney's opinion, said the Court, Congress in a new Act "omitted the prohibition, contained in former statutes, of purchase or lease from 'any Indian" and adopted an "altered form." Hence the Court concluded that "Congress did not intend that there should thenceforth be a general restriction upon the alienation by individual Indians of sections of land reserved to them respectively by a treaty with the United States. 175 U.S. at 12-13 (emphasis added.) In short, only that portion of Taney's opinion that denied to individual Indians the right to alienate their property was deemed "not controlling," because superseded by an Act of Congress; the power of Indian tribes to "reserve" portions of ceded property to individual Indians was left untouched.

It is not necessary to go into the Court's discussion of the nature of the reserved title, e.g. was it legal or equitable, arising from the fact that Indian lands were held in common; there were no individual titles. Suffice it to set out the Court's quotation from Doe v. Wilson, 25 How. 457, 463-464 (1859):

"The Pottawatomie nation was the owner of the possessory right of the country ceded, and all the subjects of the nation were joint owners of it. The reservees took by the treaty, directly from the nation, the Indian title." 175 U.S. at 15.

The continued validity of Taney's statement that title "reserved" to individual Indians does not pass to the United States may be gathered from Francis v. Francis, 203 U.S. 233, 238 (1906), which cites Jones v. Meehan for the proposition that when a treaty makes "a reservation of a specified number of sections of land the treaty itself converts the reserved land into individual property.'

(2) Apparently Dean Pollak concurs with my reading of Percheman v. United States, 32 U.S. (7 Pet. 0 51 (1833). Percheman was cited by Attorney General Bell to show that "the Court held self-executing certain clauses of the Florida Treaty with Spain which related to the regulations of property rights in newly acquired terri

tory."" Those were property rights of individuals, not of the United States, and therefore irrelevant to Article IV. The treaty secured to private individuals grants that theretofore had been made to them by the Spanish King, being akin to "reserves" of the Indian treaties. Dean Pollak agree's that "Marshall held that the Treaty of Spain of 1819 had of its own force confirmed the titles of pre-treaty owners of Florida land ceded to the United States by the treaty." (Pollak 12n.; emphasis added).

But Dean Pollak states that ("Percheman held that the interpretation of the 1819 treaty approved in Foster v. Neilson, 27 U.S. (2 Pet.) 253 (1829) (a case relied on by Mr. Berger *) was in error," Id. I cited foster for the statement that "the ratification and confirmation which are promised must be by the act of the Legislature," i.e. Congress. Percheman held that no ratification was required because the Court discovered that the Spanish counterpart version of the treaty dispensed with all ratification, a fact not known to the Foster Court. 32 U.S. at 89. This does not repudiate the Foster holding that if ratification is required, it falls to Congress. (3) There is no need to belabor Dean Pollak's mention of Holden v. Joy, 84 U.S. 211, 247 (1872), for Attorney General Bell granted that at best it was a "strong dictum," noting that "The Court conceded that the question was immaterial in the case because Congress has actually implemented and ratified that particular treaty.' ." Although Dean Pollak relies on dicta running in his favor, he rejects as dicta judicial statements that the Congressional power to dispose" is "exclusive." (Pollak 14). In fact the latter are not dicta, but were essential to decision as I shall prove by Dean Pollak. He recognizes that Sioux Tribe v. United States, 316 U.S. 317 (1942), "properly held presidential power over federal lands to be subordinate to the Congressional power," consequently the Court's reference to Congress "exclusive" power was immediately relevant to decision, not dictum. So too, Wisconsin Central R.R. Co. v. Price, 33 U.S. 496, 504 (1890), which stated that Article IV "implies an exclusion of all other authority over the property held, according to Dean Pollak, "state authority over federal lands to be subordinate to Congressional authority," again relevant to decision. Such holdings were earlier expressed by Justice Story as a general principle: "The power of Congress over the public territory is clearly exclusive and universal. "True, that principle has yet to be applied to the treaty power (as is equally true of Dean Pollak's citations), but it derives not from dicta but from statements essential to decision, whereas Holden v. Joy concededly is pure dictum. For this reason, I consider the cases I cite as more worthy of credence than the dictum of Holden v. Joy.

(4) Repeatedly Dean Pollak dwells the "classic exposition," the "classic formulation of the [treaty] power in Geofroy v. Riggs, 133 U.S. 258, 267 (1890).” (Pollak 4n., 12). That case had not the slightest bearing on the effect of Article IV for it had nothing to do with either the disposition or regulation of government property. Under a treaty providing for reciprocal rights of inheritance by citizens of the respective countries, it was held that a Frenchman could take land by descent in the District of Columbia. In Dean Pollak's view, "Geofroy v. Riggs is a particular illustration of the capacity of treaties to regulate matters delegated to Congress: That case applied to rights of inheritance in the District of Columbia, notwithstanding that Article I, 8(17) confers the power of 'exclusive legislation in all cases whatsoever' relating to the District." (Pollak 12n.). That still does not stretch to "regulation" by treaty of United States property and therefore in nowise diminishes Congress' power to dispose of it. Moreover, the treaty of 1853 conferred the right only in States "whose existing laws permit it" (the Court held the District a State for purposes of the treaty), and though the Act of March 7, 1887, forbade ownership of land in the District to aliens, it excepted the disposition of lands "secured by existing treaties" to them, which the Court held included realty "acquired by inheritance." 133 U.S. at 272. Thus the treaty did not pretend to override local law to the contrary, and Congress had consented to application of the treaty to inheritance by Frenchmen.

15

(5) Finally, Dean Pollak summons Missouri v. Holland, 252 U.S. 1416 (1920), for the proposition that the treaty makers can "empower Congress to enact legislation going beyond its specifically enumerated grants of power." (Pollak 18). That, with all due respect, is a startling proposition. For the Founders, in the words of George Nicholas in the Virginia Ratification Convention, held that no treaty can be "inconsistent with the delegated powers," let alone confer additional, undelegated powers. Lee assured that Convention that "When a question arises with respect to the legality of any power, exercised or assumed by Congress [the question will be] is it enumerated in the Constitution? It is otherwise arbitrary and unconstitutional." The reservation of undelegated powers to the people by the Tenth Amendment was not made subject to treaty; additional power requires a

grant from the people by amendment. Madison, chief architect of the Constitution, said, "Had the power of making treaties, for example, been omitted, however necessary it might have been, the defect could only have been lamented, or supplied by an amendment to the Constitution."18

For present purposes it suffices that Missouri v. Holland had nothing to do with the disposition or regulation of United States property. It arose out of a State challenge to a treaty with Great Britain for the protection of migratory birds which annually traversed parts of United States and Ĉanada. Justice Holmes stated that "The whole question is whether it is forbidden by some invisible radiation from the general terms of the Tenth Amendment." Since, he held, "Wild birds are not in the possession of any one; and possession is the beginning of ownership," the State could assert no property interest, and by the same reasoning, neither could the United States Missouri v. Holland is therefore wholly irrelevant to the power by treaty to dispose of property of the United States.

THE LEGISLATIVE HISTORY

Here I ruefully confess error in one particular, though it does not vitiate my basic analysis. Dean Pollak correctly charges me with an erroneous inference drawn from the Morris-Sherman remarks, which were not in fact "subsequent" to the discussion of the treaty power." (Pollak 16-17). I myself had caught the error and confessed it before the House Committee on Merchant Marine on January 18, 1978, a copy of which statement is attached hereto. As I there explained (p. 11):

"When [the Attorney General's statement before the Foreign Relations Committee] reached me late of a Saturday afternoon, as appears in my own Senate statement, I had only about two days to prepare my comments before having them typed and forwarded to the Senate Committee. Pressure of time conduces to oversights, and I was mistaken respecting a time sequence and in following the Attorney General's erroneous identification of a motion made by Williamson and Spaight with one he attributed to Sherman and Morris. Leisure for reflection and further research has since enabled me to correct such inaccuracies and to sharpen my analysis."

Such oversights are regretable, even though induced by undue pressure of time and accentuated by lack of secretarial service and a corps of research assistants such as the administration can devote to the task.

The Attorney General was guilty of a similar oversight in emphasizing a remark on the treaty power by George Mason during a debate on whether the Senate could share in originating revenue bills. 20 For Mason spoke before the Article IV progenitor had been proposed and referred to the Committee on Detail, and of course before the resultant "disposition" provision was debated./2 M. Farrand, Records of the Federal Convention of 1787, 297, 321, 324, 466 (1911). Manifestly Mason's earlier remark hardly expressed the view that the treaty power overrode the as yet unborn "power to dispose."

There is no need to repeat the fresh analysis on more thorough research that is set forth at pages 12-17 of my attached statement before the House Committee on Merchant Marine. Throughout, all that was under discussion was the performance of the Senate's own "advice and consent" function, whether it should turn on more or less than a two-thirds vote, without a hint of desire to curtail the House function under Article IV. It was one thing to insist that the Senate, in the performance of its own function, must act by a two thirds vote, and something else again to court the wrath of those who placed their faith in the more democratic House and were already displeased by the exclusion of the House from treaty making, by further reducing its role under Article IV. There is not, I repeat, the slightest hint in the history of an intention to do so. More is required to deprive the Article IV language of its clear meaning.

It remains to comment on Dean Pollak's rejection of my reminder that what the President seeks today with the "advice and consent" of the Senate he may next time seek to accomplish single-handedly by executive agreement. (Pollak 19n.) Doubtless you are familiar with the rapid proliferation of executive agreements in recent years, a label pasted on a treaty to avoid the necessity of submission to the Senate." When Senator J. William Fulbright was chairman of the Foreign Relations Committee, he complained that the State Department submitted treaties for "the most trivial matters" but declined to submit them for agreements respecting Spanish bases and the like. As he ironically told Secretary of State Rogers, "something as important as stationing troops and the payment of millions of dollars is proper for an executive agreement."

"22

Dean Pollak dismisses my concerns "about the aggrandizement of executive authority" as "not pertinent-indeed, they may properly be termed impertinent

when a President, acting in meticulous conformity with the procedure specified in the Constitution, has asked the Senate to fulfill the partnership role in making of treaties which the President expressly contemplates." (Pollak 19n.)

Since fulfillment of that "partnership role" (for which I broke more than one lance) was many times frustrated by attaching the "executive agreement" label to treaties, I may be pardoned for being skeptical about the rake's reform. Permit me to close with the words of Alexander Hamilton, the great proponent of expansive presidential power:

An agent cannot new model his own commission. A treaty cannot transfer the legislative power to the executive department.23

FOOTNOTES

1 W. S. McKechnie, Magna Carta 135 (1905).

Le Page v. United States, 146 F. 2d 536, 538 (8th cir. 1945); see also Ginsberg & Son v. Popkin, 285 U.S. 204, 208 (1932); Swiss Natl. Ins. Co. v. Miller, 289 Fed. 570, 574 (D.C. Cir. 1923). Botany Worsted Mills v. United States, 278 U.S. 282, 289 (1929) (emphasis added). T.I.M.E. v. United States, 359 U.S. 464, 471 (1959): "we find it impossible to impute to Congress an intention to give such a right to shippers under the Motor Carriers Act when the very sections which established that right in Part I [for railroads] were wholly omitted in the Motor Carrier Act." Wisconsin Cent. R.R. Co. v. Price County, 133 U.S. 496, 504 (1890) (emphasis added); Sioux Tribe of Indians v. United States, 316 U.S. 317, 326 (1942); Swiss Natl. Ins. Co. v. Miller, 289 Fed. 571, 574 (D.C. Cir. 1923).

1 J. Story, Commentaries on the Constitution of the United States, 305 n.2 (5th ed. 1905). •Hearings before the House Subcommittee on the Panama Canal on "Treaties Affecting the Operation of the Panama Canal (92d Cong. 2d Sess.) p. 95 (December 2, 1971).

Berger, Executive Privilege v. Congressional Inquiry, 12 U.C.L.A. L.Rev. 1044, 1085-86 (1965). ⚫2 A. Beveridge, Life of John Marshall, 133-135 (1916).

•Hearings on the Panama Canal Treaty before the Senate Committee on Separation of Powers (95th Cong. 1st Sess.) Part II, p. 25 (July 9, 1977).

10 Supra n. 5, 2 story at p. 200.

11 Jones v. Meehan, 175 U.S. 1, 12, 21 (emphasis added).

12 Statement before the Senate Foreign Relations Committee, September 29, 1977, p. 10. 13 Id. 9.

14 Supra n. 5 at 200.

18 133 U.S. at 267-271. The 1887 Act prohibited alien ownership of land in the District of Columbia "Provided that the prohibition of this section shall not apply to cases in which the right to hold or dispose of lands in the United States is secured by existing treaties to the citizens or subjects of foreign countries." 24 Stat. 476. Like Dean Pollak, I had mistakenly assumed that "local law withheld the right." My statement before the Senate Subcommittee on the Separation of Powers, November 13, 1977, p. 8.

13 J. Elliot, Debates in the Several State Conventions on the Adoption of the Federal Constitution 507 (2d ed. 1836).

17 Id. 186. For additional citations, see R. Berger, Congress v. The Supreme Court 13-15 (1969). 12 Annals of Congress 1900-1901 (February 2, 1791).

19 252 U.S. at 433-434.

» Supra n. 12 at 6.

21 Professor Philip Kurland asked, "Should the Constitution really be read to mean that by calling an agreement an executive agreement rather than a treaty, the obligation to secure Senate approval is dissolved." Kurland, The Impotence of Reticence, 1968 Duke L.J. 619, 626.

These and other citations are set out in R. Berger, Executive Privilege: A Constitutional Myth 142 (1974): A detailed discussion of executive agreements will be found at pp. 140-162. 23 "Letters of Camillus," 6 A. Hamilton, Works 166 (Lodge ed. 1904).