to Congressional approval.' A similar provision is to be found in the Treaty of 1955.2 These executive constructions are confirmed by established canons of interpretation. First, there is the settled rule that where there is in an act a specific provision relating to a particular subject, that provision must govern in respect to that subject as against general provisions in other parts of the act, although the latter, standing alone, would be broad enough to include the subject to which the more particular provision relates.3 In other words, "a broad statutory provision will not apply to a matter specifically dealt with in another part of the same act." Restated in terms of the present issue, the specific power of disposition, in which the House of Representatives must concur, governs the general provision authorizing the President and the Senate to make treaties. Second, there is the canon that express mention signifies implied exclusion, which the Supreme Court has employed again and again: "When a statute limits a thing to be done in a particular mode, it includes the negative of any other mode." 5 The grant of the disposition power to Congress, in other words, excludes its exercise by Senate and President. The rule was invoked by the Founders; for example, Egbert Benson said in the First Congress, in which sat many Framers and Ratifiers, that "it cannot be rationally intended that all offices should be held during good behavior, because the Constitution has declared [only] one office to be held by this tenure." Under these rules it is of no moment that Article IV contains no express exclusion of "concurrent jurisdiction" under the treaty power. Having given Congress the power to dispose of public property, it follows that the President and Senate were impliedly excluded therefrom. Although this particular exclusion was not before the Court, it tacitly ratified the application of the foregoing rules of construction when it stated that Article IV "implies an exclusion of all other authority over the property which could interfere with this right..." Attorney-General Griffin B. Bell conceded in his statement before the Senate Foreign Relations Committee, September 25, 1977 (hereafter cited as A.G.), that the specific powers granted to the House of Representatives 1 Agreement of May 18, 1942, 59 Stat. (Pt. 2) 1289: "When the authority of Congress... shall have been obtained therefore. 2 Agreement of January 25, 1955, 6 U.S.T. 2273, 2278. Swiss Nat. Ins. Co. v. Miller, 289 Fed. 570, 574 (App. D.C. 1923) emphasis added; Ginsberg & Son v. Popkin, 285 Ú.S. 204, 208 (1932). We should "prefer a construction which leaves to each element of the statute a function in some way different from the others" to one which causes one section to overlap with another. United States v. Dinerstein, 362 F. 2d 852, 855-856 (2d Cir. 1966). Le Page v. United States, 146 F.2d 536, 538 (8th Cir. 1945). Botany Worsted Mills v. United States, 278 U.S. 282, 289 (1929); 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 Carrier Act when the very sections which established that right in Part I [for railroads] were wholly omitted in the Motor Carrier Act." 1 Annals of Cong. 505 (2d ed. 1836; print bearing running head "History of Congress"): see also Alexander White, id. 517. So too, John Dickinson stated in the Constitutional Convention that "the terms 'ex post facto' related to criminal cases only: that they would not consequently restrain the States from retrospective laws in civil cases. . . ." 2 Farrand 448-449. 7 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); see also Swiss Nat. Ins. Co. v. Miles, 289 Fed. 571, 574 (App. D.C. 1923). tions power) preclude making treaties self-executing to the extent that they involve the raising of revenue or the expenditure of funds. Were it otherwise, President and Senate could bypass the power of Congress and in particular of the House of Representatives over the purse strings. A.G. 4-5. Now sections 9 and 7 are couched in quite dissimilar terms. Section 9(7) is framed in terms of flat prohibition: "No money shall be withdrawn from the Treasury but in consequence of appropriations made by law. . . ." Section 7(1), however, merely provides that "All bills for raising revenue shall originate in the House." Yet the Attorney General reads §7 to preclude the President and Senate from "bypass[ing] the power of Congress and in particular of the House of Representatives over the purse strings." What is there that distinguishes "All bills... shall originate in the House" from "The Congress shall have power to dispose..."? The impalpability 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." If the President may not by treaty "bypass" the power of the House to originate revenue-raising bills, or the power of Congress to tax, no more may he "bypass" its "power to dispose" of the property of the United States. In their testimony before the Congress, Herbert J. Hansell, Legal Advisor, Department of State, and Ralph E. Erickson, Deputy Assistant Attorney General,10 cited a string of cases in support of "The power to dispose of public land... by treaty." 11 For the most part they fall under boundary treaties or treaties with Indian tribes which, as will appear, turn on circumstances peculiar to themselves. Preliminarily consider Hansell's citation of Missouri v. Holand, 252 U.S. 416 (1920). It arose out of a State challenge to the treaty with Great Britain for the protection of migratory birds which annually traversed parts of the United States and Canada. Justice Holmes, addressing the argument that the treaty infringed powers reserved to the States by the Tenth Amendment, stated: Wild birds are not in the possession of any one, and possession Consequently, the State could assert no "title" in migratory birds. By the same token, the United States also could not lay claim to "ownership" of the birds, the Missouri v. Holland is therefore wholly irrelevant to the power by treaty to dispose of property belonging to the United States. • Hearings on the Panama Canal Treaty before the Senate Committee on Separation of Powers (95th Cong., 1st Sess.), Part II, p. 25 (July 29, 1977), hereafter cited as Hansell. Supra, note 8. 10 Hearings before the House Subcommittee on the Panama Canal on "Treaties Affecting the Operations of the Panama Canal," (92nd Cong., 2d Sess.) p. 95 (December 2, 1971) hereafter cited as Erickson. 1 Hansell 5; Erickson 97. 12 252 U.S. at 434. The Indian treaty cases constitute one of the pillars of the argument for "concurrent power"; and Attorney General Griffin B. Bell referred to them as a substantial body of Supreme Court decisions dealing with To begin with Jones v. Meehan, 175 U.S. 1 (1889), both Hansell and Erickson quote, "It is well settled that a god 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, or any patent from the Executive authority of the United States." 14 This was because the treaty merely reserved certain individual tracts from the cession to the United States. It "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 quoted from an opinion of Attorney General Taney, destined before long to succeed Chief Justice Marshall: these reservations are expected 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.15 The Court held that "the reservation, unless accompanied by words limiting its effect, is equivalent to a present grant of complete title in fee simply." 16 That explanation presumably responded to the fact that tribal lands were generally held in common; individual titles were all but unknown, so that such title had to be secured to an individual through the machinery of the treaty. But that is far from a disposition of government land because, as Taney explained, the "reserved" title remained in the Indians. Many, if not most, of the Indian treaty cases involve just such "reserve" provisions. We might dismiss Holden v. Joy, 84 U.S. 211 (1872) because, as Attorney General Bell noted, "The Court conceded that the question was immaterial in the case at bar because Congress had actually implemented and ratified that particular treaty." A.G. 9. Nevertheless, the Court, in what it terms a "strong dictum", stated that "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...." 17 I was at pains to study each of the cases cited by the Court for this assertion, and abstracted them in an appendix attached to my statement before the Senate Subcommittee on Separation of Powers. There you may see for yourself that half of the cases thus cited are entirely irrelevant, and that the rest concern "reserves" under which, as Taney observed, no title had passed to the United States but remained in the given Indian. In considering such dicta, it is well to bear in mind Chief Justice Taney's statement that the Court's opinion upon the construction of the Constitution is always As to other treaties, Hansell tells us, "the precedents supporting the power to dispose of property by treaty alone can be found in the boundary treaties with neighboring powers, especially in the treaties between the United States and Great Britain in 1842 and 1846 for the location of our northeast and northwest boundaries. . . ." 19 Settlements of boundary disputes are not really cessions of United States property. The Oregon boundary dispute proceeded from an extravagant claim: "Fifty-Four Forty or Fight"; the British, on the other hand, claimed land down to the forty-second parallel. Only when the dispute was settled by negotiation at 49 degrees could either party confidently assert that it had title. As a respected commentator, Samuel Crandall, observed, "a treaty for the determination of a disputed line operates not as a treaty of cession, but of recognition." 20 Among other examples of alleged treaty transfers of property, Hansell instances the return to Japan of the Ryukyu Islands.21 By Article III of the 1951 Treaty of Peace with Japan, the United States received the right to exercise "all and any powers of administration, legislation and jurisdiction over the territory and inhabitants of those islands..." While Japan renounced in Article II "all right, title and claim" to various territories, it made no similar renunciation with respect to the Ryukyus.22 Quoting the Legal Advisor of the State Department, that "sovereignty over the Ryukyu Islands. . . remains in Japan," a District Court stated that sovereignty over a territory may be transferred by an agreement of cession," but it concluded that there had been no cession.23 The Fourth Circuit Court of Appeals quoted a statement by Ambassador John Foster Dulles, a delegate to the Japanese Peace Conference, that the aim was "to permit Japan to retain residual sovereignty," and it held that the treaty did not make "the island a part of the United States, and it remains a foreign country for purposes of the Federal Tort Claims Act.24 In sum, Messrs. Hansell and Erickson have failed to make out a case for the President's "concurrent jurisdiction" with Congress in the disposition of United States property. It remains to consider the arguments advanced by Attorney General Bell before the Senate Foreign Relations Committee. He cited United States v. Percheman, 32 U.S. (7 Pet.) 51, 88-89 (1833) to prove that "the Court held self-executing certain clauses of the Florida Treaty with Spain which related to the regulation of property rights in newly 18 The Passenger Cases, 48 U.S. (7 How.) 283, 470 (1849), dissenting opinion. 19 Hansell 6. 20 S. Crandall, "Treaties, Their Making and Enforcement" at p. 226 (2d ed. 1916). Hansell 6. 223 U.S.T. 3169, 3172, 3173. United States v. Ushi Shiroma, 123 F. Supp. 145, 149. 148 (D. Hawail, 1954). 24 Burna v. United States, 240 F. 2d 720, 721 (4th Cir. 1957). acquired territory." A.G. 10. At the cited page it appears that Article 8 of the treaty provided, all the grants of land made before the 24th of January, 1818, This article, Chief Justice Marshall held, must be intended to stipulate for that security of private In other words, the treaty provided that prior Spanish grants to private persons should be ratified and confirmed, a provision far removed from presidential "regulation" of public territory. Such regulation is confined to Congress, as Foster v. Neilson, 27 U.S. (2 Pet.) 253, 314-315 (1829) held with respect to the self-same provision: "the ratification and confirmation which are promised must be by the Act of the Legislature," i.e., Congress. REMARKS IN THE LEGISLATIVE HISTORY OF THE TREATY POWER Before discussing the legislative history adduced by the Attorney General, permit me a few words of explanation and apology. When his statement before the Senate Committee reached me late of a Saturday afternoon, as appears on 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. And it has strengthened my conviction that the treaty power was not designed to diminish the Article IV power of Congress. For the most part the Attorney General's citations have reference to settlement of boundary disputes by treaties of peace which, as we have seen, do not involve cessions. He begins with a remark of George Mason in the Constitutional Convention, an in terrorem statement during a debate on whether the Senate could share in originating revenue-raising bills. Speaking for exclusion of the Senate, Mason stated that the Senate "could already sell the whole country by means of treaties," and then toned down this extravagant overstatement to that quoted by the Attorney General: "The Senate by means of a treaty might alienate territory, etc., without legislative sanction." A.G. 6, 2 Farrand 297. Mason spoke before the Article IV progenitor was even proposed and referred to the Committee on Detail, 2 Farrand 321, 324, and of course before the resultant "disposition" provision was debated, id. 466. Manifestly his earlier remark hardly expressed the view that the treaty power overrode the as yet unborn "power to dispose." The Attorney General's other citations will be considered seriatim. (1) The remarks of Gerry, and of Williamson and Spaight, cited A.G.6., were made after Madison's motion to "except treaties of peace" |