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from the two-thirds vote requirement had been agreed to by unanimous consent. 2 Farrand 540. Gerry protested
that in treaties of peace a greater rather than a lesser pro-
than on any other occasions. Id. 541. The "extremities” patently refer to boundary disputes. Notwithstanding, Madison's "exception" was again approved by a vote of 8 to 3. Now Williamson and Spaight took up the opposition and “moved that no Treaty of Peace affecting territorial rights should be made without the concurrence of two thirds of the [members of the Senato present.]” id. 543 25 In short, they sought to exclude treaties of peace "affecting territorial rights” from the Madison “exception.” A note added to Madison's records recites that "The subject was then debated, but the motion does not appaer to have been made.” 4 Farrand 58. On the following day, Sherman and Morris spoke “agst leaving the rights, established by the Treaty of Peace, to the Senate, & moved to annex a 'proviso that no such rights shd be ceded without the sanction of the Legislature," ", id. 548,26 a clear reference to boundary disputes. The matter was resolved by striking Madison's exception. 2 Farrand 548--549. Throughout all that was under discussion was the performance of the Senate's own “advice and consent" function, without a hint of desire to curtail the House function under Article IV. The Convention's overnight reversal of its approval of Madison's motion testifies how fluid were its views in this area, arguing against giving the remarks of Gerry et al preponderant weight,
(2) Of the same order is a letter by Hugh Williamson, a delegate to the Convention, written to Madison some nine months after its close, to recall to him
a Proviso in the new Sistem which was inserted for the ex-
making treaties. A.G.7–8; 3 Farrand 306–307. As the Attorney General's fuller quotation shows, Williamson feared that General Wilkinson might be led to give up the Navigation of the Mississippi,” and recalled that “the Navigation of the Mississippi ... was not to be risqued in the Hands of a meer Majority.” A cession of territory was not therefore involved, but rather claims to rights of navigation. At best, the Mississippi issue was a boundary claim finally settled by the Louisiana Purchase. Nor was that issue the sole motivation for insistence on a two-thirds requirement. George Mason explained in the Virginia Ratification Convention that because of their concern about the Newfoundland fisheries, “The eastern states therefore agreed a length, that treaties should
* The Attorney General mistakenly attributes a more complete version of this motion to Sherman and Morris, A.G. 6–7, citing 4 Farrand 58. That page merely sets forth an insertion to be made in 2 Farrand' 543, which contains only the "motion" of Williamson and Spaight. ** Emphasis added.
require the consent of two-thirds of the members present in the Senate." 3 Farrand 335. Such diverse motives counsel against reading the several "two-thirds” remarks as evidencing an intent to diminish the role of the House under Article IV. It was one thing to insist that the Senate, in the performance of its own function, must act by a twothirds vote, and something else again to court the wrath of the democratically minded, who placed their faith in the House and were already disgruntled by the exclusion of the House from the negotiation and making of treaties, by further reducing the role of the House under Article IV.
(3) The Attorney General also cites an amendment proposed by the Virginia Convention as exhibiting the awareness of the Founding Fathers that the Constitution authorizes self-executing treaties disposing of the territory and property of the United States:
no commercial treaty shall be ratified without the concur-
(Emphasis added.) A.G. 7; 3 Elliot, Debates on the Federal Constitution 600. From this attempt to bring the House into treaty ratification the Attorney General would infer that it could be excluded from the Article IV "disposition" of territory. It is simpler to read it as a renewal of the struggle for House participation in treaty-making. In any event, he proves too much. The Virginia Convention likewise recommended *That the legislative, executive and judicial powers should be separate and distinct,” that the right to challenge jurors should not be restrained. 3 Elliot 657-658.27 Do these proposals prove that the separation of powers therefore is not a fundamental principle of the Constitution, or that it does not guarantee the rights to challenge jurors? When implicit rights are not thus negatived, how much stronger is the case for giving effect to the express Article IV grant to Congress despite such proposals. Like the earlier remarks, the Virginia amendment testifies to the importance the Founders attached to the disposition of territory-no cession except “in cases of extreme necessity”—and suggests, as in the proposal to spell out the right of challenge, that the Virginians were merely seeking to make assurance doubly sure.
Our guide is furnished by Pierson v. Ray, 386 U.S. 547, 554–555 (1967). There the Court declared with respect to the common law immunity of judges from suit for acts performed in their official capacity.
We do not believe that this settled principle was abolished by § 1983, which makes liable "every person" who under
27 “That in criminal prosecutions, no man shall be restrained in the exercise of the usual and accustomed right of challenging or excepting to the jury." 3 Elliot 657-658. The Virginia Convention had been assured by John Marshall, Edmund Pendleton and Governor Randolph that the words "trial by jury" embraced all its attributes, such as the right to challenge jurors. 3 Elliot 559, 546, 547, 436, 573.
color of law deprives another of his civil rights
it wished to abolish the doctrine. Thus the all-inclusive "every person" was held not to curtail an existing common law immunity in the absence of a specific provision. The more equivocal treaty-making power demands an even more exacting standard. Before it be concluded that it in any way diminishes the explicit grant to Congress of “power to dispose” of territory and property, a clearly expressed intention to do so should be required. That requirement is not satisfied by the random remarks collected by the Attorney General.
In my judgment, the Panama Treaty should contain a provision making it subject to approval of the Congress.
A DIGEST OF INFORMATION
PREPARED FOR THE
COMMITTEE ON THE JUDICIARY
UNITED STATES SENATE
SUBCOMMITTEE ON SEPARATION OF POWERS
JAMES B. ALLEN, Alabama, Chairman
Printed for the use of the Committee on the Judiciary
U.S. GOVERNMENT PRINTING OFFICE
WASHINGTON : 1978
For sale by the Superintendent of Documents, U.S. Government Printing Ofice
Washington, D.C. 20402