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I noted in the Indianapolis Star this morning that you are about to hold
hearings as the Chairman of the Subcommittee on Separation of Powers
on the subject of whether the President has the authority under the
Constitution to negotiate for the surrender of territorial or property
rights in the Panama Canal Zone,

On December 6, 1971, while a member of the Congress from Indiana, I
testified on this general subject before a subcommittee on the Panama
Canal of the House Committee on Merchant Marine and Fisheries which
was chaired by Representative Murphy of New York. I thought that
possibly my testimony on that occasion might be of some interest to you
in connection with your present inquiry, and I therefore take the liberty
of enclosing a copy thereof.

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Statement of


of Indiana

before the Subcommittee on the Panama Canal
of the Committee on Merchant Marine and Fisheries

Monday, December 6, 1971

Mr. Chairman and Gentleman of the Comittee:

I should like to discuss reasonably briefly this morning the very interesting legal question which I understand to be under consideration by this distinguished committee, and which may, I think, be stated somewhat in this way: If, in any new treaty negotiated by the United States of America and the Republic of Panama, provision is made for the transfer of real or personal property of the United States to Panama, or if provision is made for the payment of money by the United States to Panama, can this be accomplished by the making and ratification of the treaty by the President of the United States and the United States Senate alone, or would such treaty provisions require implementation enacted by both houses of the Congress?

I make no claim to be an expert on this subject, but I regard it as an interesting and important one, on which I should enjoy holding a brief en behalf of the claims of this House, and I believe it is a question well worth all the attention we can give it.

Article II, Sec. 2, Clause 2 of the Constitution of the United States provides as follows: "He (the President) shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur;"

Article VI, Clause 2 of the Constitution provides that: "This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land;"

On the other hand Article I, Sec. 9, Clause 7 specifically says:

"No Money shall be drawn from the Treasury, but in Censequence of Appropriations

made by Law;"

And Article IV, Sec. 3, Clause 2 states that: The Congress shall have Power to dispose of and make all needful Rules and Regulations respecting the Territory or ether Property belenging to the United States;"

These would seem to be the provisions of the Constitution of the United States which are primarily operative en the question new under


History records that the dispute ca this matter goes back to the early days of our Republic. It has been noted that Fresident Washingten and the House of Representatives took differing views on the matter at the time of the ratification of the Jay Treaty in 1796. Thomas Jeffersen at Sec. 594, pages 291-92 of Jeffersen's Manual, as printed with the Rules of the 92nd Congress discusses the problem in this fashien:

"By the Constitution of the United States this department of legislation is cenfined to two branches enly of the erdinery legislature - the President eriginating and the Senate having a negative. To what subjects this power extends has not been defined in detail by the Constitution; nor are ve entirely agreed among ourselves. 1. It is adzitted that it must concern the foreign nation party to the contract, or it would be a mere nullity, res inter alias acta. 2. By the general power to make treaties, the Constitution must have intended to comprehend enly those subjects which are usually regulated by treaty, and can not be otherwise ragulated. 3. It must have meant to except out of these the rights reserved to the States; for surely the President and Senate can not do by treaty what the whole Government is interdicted from doing in any way. 4. And also to except those subjects of legislation in which it gave a participation to the House of Representatives. This last exceptien is denied by some on the ground that it would leave very little matter for the treaty power to work on. The less the better, say ethers. The Constitution

thought it wise to restrain the Executive and Senate from entangling
and embroiling our affairs with those of Europe. Besides, as the
negotiations are carried on by the Executive alone, the subjecting
to the ratification of the Representatives such articles as are
within their participation is no more inconvenient than to the

Henry Clay introduced resolutions in the House of Representatives in

1820 in connection with the treaty with Spain respecting Florida in which

he asserted that no treaty purporting to alienate any portion of the territory belonging to the United States was valid without the concurrence of the

Congress. Mr. Clay's resolutions, although debated, apparently never came to a vote; and it can not be said with ccnfidence that there has even

today been a complete and definitive answer given to the questions which were considered by Clay, Jefferson, and Washington.

Certain principles seen to be fairly well established. Thus, a treaty is stated by the Constitution to be the law of the land, and consequently it is treated, generally, as a Statute enacted by the Congress is treated; for example, in the case of conflict between the provisions of a treaty and those of a Statute, the latter in time prevails, and so, it would seem, a treaty, like a Statute, might be imconstitutional and, like a Statute, could have no validity if it contravened the Constitution.

In the case of The Cherokee Tobacco 78UB (11 Wall.)616 (1870), which held that a later Statute prevailed over the terms of a treaty, the court observed, relative to Article IV, Sec. 2 of the Constitution that: "It need hardly be said that a treaty cannot change the Constitution or be held valid if in violation of that instrument. This results from the nature and fundamental principles of our government."

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