Thus in Reid v. Covert 354 0.8. 1 (1956) Mr. Justice Black,

speaking for the Court, held that the provisions of Article VI, Clause 2
do not permit any treaty to contravene the Constitution. "It would",
he said, "be manifestly. ..alien to our entire Constitutional tradition.
..to construe Article VI as permitting the United States to exercise
power under an international agreement without observing Constitutional
prohibitions.
·· .The prohibitions of the Constitution were designed to
apply to all branches of the National goverment, and they cannot be
nullified by the executive, or by the executive and the Senate combined."

The Restatement of the Foreign Relations Law of the United States

(Second) Sec. 117, Page 370 puts the matter thus:

"(1) The United States has the power under the Constitution
to make an international agreement if

(a) the matter is of international concern, and

(b) the agreement does not contravene any of the
limitations of the Constitution applicable to all
powers of the United States."

Again, it seems to be fairly clear that same treaties are self

executing and some are not. This proposition was laid down at an early date by Chief Justice Marshall in the case of Foster V. Nielson 27 U.S. (2 Peters) 25.3 at 314 (1829) where, after pointing out that by general principles of International law a treaty is a contract between nations and not ordinarily self-executing, he then said:

Our Constitution

"In the U. S. a different principle is established.
declares a treaty to be the law of the land. It is, consequently,
to be regarded in courts of justice as equivalent to an act of the
legislature, whenever it operates of itself without the aid of any
legislative provision. But when the terms of the stipulation import

a contract, then either of the parties engages to perform
particular act, the treaty addresses itself to the political,
not the judicial department and the legislature must execute
the contract before it can become a rule for the Court.

It is submitted that this language ought to be significant in

construing the meaning and effect of any treaty under which this country should undertake to make transfers of money or property.

Professor Cooley, in his General Principles of Constitutional

Law (2nd Ed. Little, Brown and Company 1891) at page 106 says:

.the treaty will take effect at its enactment provided it is capable of operating of itself without new legislation

One example, among many which could be cited, of a self-executing 288 treaty is found in the case of Cook v. U.S.U.S. 102 at 118-19 (1932) where a later adopted and self-executing treaty operated, in and of itself

to alter the distance from our shores previously fixed by Statute within which American Coast Guard cutters could stop and search British ships for illicit liquor.

It is interesting to note that PCfessor Cealey, in the same passage already quoted, also has this to say regarding the treaty making power: "The Constitution imposes no restriction upon this power, but it is subject to the implied restriction that nothing can be done under it which changes the Constitution of the Country, or roba a department of the government...of its Constitutional authority."

Mr. Justice Field observed in (cəfroy v. Riggs 133 U.8. 258 at 267 (1890) that "it would not be contended that the (treaty power) extends so far as to authorize what the Constitution forbids"

And at page 163 of his treatese already referred to Professor Cooley

has this rather striking passage which bears directly on our present question:

"The full treaty making power is in the President and 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. Many treaties need no such legislation; but when monies are to be paid by the United States they can be appropriated by Congress alone; and in some other cases laws are needful. An unconstitutional or manifestly unwise treaty the House of Representatives may possibly refuse to aid; and this, when legislation is needful, would be equivalent to a refusal of the government, through one of its branches to carry the treaty into effect. This would be an extreme measure, but is conceivable

that a case might arise in which a resort to it would be justified."

follows:

Returning to The Restatement at Sec. 141 the rulesis stated as

"A treaty can not be self-executing.

.to the extent that

it involves govermental action that under the Constitution can
be taken only by the Congress."

and at pages 435-36 under Sec. 141 we find the following:

"f. Constitutional limitation on self-executing treaties.
Even though a treaty is cast in the form of a self-executing
treaty, it does not become effective as domestic law in the United
States upon becoming binding between the United States and the
other party or parties, if it deals with a subject matter that by
the Constitution is reserved exclusively to Congress. For example,
only the Congress can appropriate money from the treasury of the
United States.

"8. The United States enters into a treaty with state A under which A agrees to cede a portion of its territory to the United States in return for payment of $7,200,000. Advice and Consent to the ratification of the treaty is given by the Senate and it is ratified by the President. The ratification does not have the effect of appropriating the $7,200,000. Further action to this effect must be taken by both Houses of Congress.

"The mere fact, however, that a Congressional power exists does not mean that the power is exclusive so as to preclude the making of a self-executing treaty within the area of that power."

Within these rules and principles, and having regard to the specific and exclusive type of language found in Article I, Sec. 2, Clause 7 of the Constitution I am of the opinion that any treaty calling for the payment of money out of the Treasury of the United States would definitely

require an act of appropriation by the Congress.

I believe, further, that the authorities cited up to this point would lay the foundation for a good argument that such implementing legislation would, or might well be, required also for other types of property.

I note in this connection that Mr. Carl F. Salans, Deputy Legal Advisor of the Department of State, at page 5 of his statement to this Committee refers to "interests in real property, including substantial improvements" which were "acquired from . ..private land holders" and which might be transferred to Panara.

It seems to me that it might well be entirely reasonable to equate property interests of this nature with public funds, in considering whether legislation by the Congress is necessary to legally effectuate this transfer. When, however, we case to consider the broader matter of the cession of national territory to another sovereign power the answer, in view of past practice and some court decisions, is less clear.

Mr. Balans, at page 4, of his statement, makes the point, in this connection, that, as he claims, we do not have sovereignty in the Canal Zone, that all we have is "the use of an area" and "the right to exercise juris-" diction, while Panama retains a "titular sovereignty". And he says "these are treaty rights and may be modified or terminated by another treaty." I am aware of the provisions of the 1903 treaty on which Mr. Salans bases this position. I would suggest, however, that wherever "titular sovereignty" may reside under that treaty, that by its express sad specific terms we have "in perpetuity the use, occupation, and control" of the Canal Zone and "all the rights, power, and authority" within that Zone which the United States would possess and exercise if it were the sovereign of the territory." It

seems to me that these are valuable property rights, as well as treaty rights and, moreover that, certainly for all practical purposes, and very possibly for all legal intents and purposes we have sovereignty; for we certainly have, at least, all the powers and attributes of which sovereignty customarily consists, and which, alone, make it valuable. Therefore it would seem to me that we can reasonably proceed to consider this problem on the basis that United States sovereignty presently exists.

Even so considered, however, the rights of Congress and the need of legislation to implement a land cession by treaty are not so clear as we might wish.

There is a line of decisions regarding treaties between the United States and Indian tribes or nations which are frequently cited for the proposition that a treaty alone, and without implementing legislation can legally operate to cede United States territory to a foreign nation. Among these are the following:

Worcester v. Georgia 6 Pet. 515 (1832)

Holden V. Jay 84 U. 8. (17 Wall,) 211 (1872)

Jones v. Msehan 175 U. 8, 1 (1899)

It may be said, however, that the language relied upon for this view in Holden v. Jay is strictly dicta and decision of the point now under discussion was, as the court pointed out, not necessary, because the treaty in question had been fully carried out and Congress had repeatedly recognized it by the passage of appropriation bills.

Worcester v. Georgia, so far as applicable here, involved more strictly the drawing of a international boundary line than a cession of unquestioned American territory (something which even Henry Clay conceded in his 1820