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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 Indias
boforo tho Subcovitto on tho Panama Canal
of the Committoo an Horchat Marino md Fisheries

Monday, December 6, 1971
Mr. Chunan and Gontlemen of the coattoo:

I should liko to dscuss rusonably briofly this morning the very in

torosting legal question which I wderstand to be under consideration by this

distinguished coraitto., and which wy, I think, be stated somewhat in this vay:

If, in my www trosty rogotiated by the United States of Aboria and the Co the other band Article I, Boc. 9, Cleuse 7 specifically says:

Ropublic of Parau, provision is made for the trasfor of nal or personal

property of the United States to leama, or if provision is made for the pornmat

of money by the United States to Pam, cm this be accomplished by the making

and ratificatia of the truty by the President of the United States and the

United States Senato wae, or would such traty provisions requin implementatia

Gracted by both houses of the Congress?

I nako ao clada to be an expert on this subject, but I regard it as a interesting and importat ono, a which I should enjoy holding a brief a behalf of the class of this House, and I believe it is a question well worth

all the attention vo co dive it.

Article II, Sec. 3 Claus. 2 of the Constitution of the United States

provides as follows:

"Ho (the President) shall hav. Powor, by and with the

Advice and Consent of the Senate, to make Treatios, provided two thirds of

the Sonators presont concur;"

Articlo VI, Close 2 of the Constitution provides that:


Constitution, and the laws of the Vaited States which shall bo rado in

Pursuance thereof; and all truatios medo, or which shall be made, under

the Authority of the United States, shall be the sopru. La of tho Lmd;"

"To Honey shall be drawn fra the Treasury, but in Censequence of Appropriatics

made by Lar;"

And Article IV sec. 3, Meuse 2 stetes that:

"The Congress shall

bare power to dispose of and make all need the Rules and Regulations respecting

the Territory or other Property belonging to the United States;"

These veuld sem to be the provisions of the Constitution of the

United States which are primarily operative e the question now under


History records that the dispute a this Etter goes beads to the

early days of our Republic. It has been noted that President Washington

and the House of Representatives toak ditering vien as the setter at the time of the retinetic of the Juy Treaty in 1796. Thomas Jeffersen

at 86c.. 594, peges 291-92 of Jefferson's kamal, as printed with the Pales

of the send Congress discusses the prebla in this fubica:

by the Constitution of the Voited States this dopustzant of legislatie is catived to two branches waly of the adinery loglalature • the President congloating and the Senate baring • negative. To what subiects this ostands bas dot been defined 19 detall by the Constitutiou; nor are we entire road comes our seres. 1. It is datted that it must concern the foreign nation perty to the contract, or it would be a mere sallity, res inter Dias acte, 2. By the general porer to make treaties, the Ceastitatia mst bere latended to comprebend sly those subjects which are usually regulated by treaty, and can not be othervise nagulated. 3. It must have mount to except out of these the rights reserved to the 'Btates; for surely the President and Senate can not do by treaty what the whole Govermenant is interdicted fra doing in any way. 4. And dso to ecopt those subjects of Legielation in which it ve u partidpetic to the House of Representetives. This last exceptica 10 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 other. The Constitution

thought it vise to restrain the Executive und Senate from entangling
and embroiling our affairs with those of farope. Besides, as the
negotiations are carried on by the bcecutive Mone, the subjecting
to the ratification of the Representatives such articles u are
within their participation 18 Do more inconvenient than to the

Henry May introduced resolutions in the House of Representatives in

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

he asserted thet no tresty purporting to allenate any portion of the territory

belonging to the United States vas nalid without the concurrence of the

Congress, H. May's resolutions, although debated, apparently never came

to vote; and it can act be said with

confidence that there has even

today been a complete and definitive wasver given to the questions which

were considered by May, Jefferson, and Washington.

Certain principles seem to be fairly well establishedThu, .

treaty is stated by the Constitution to be the law of the land, and consequently 1t 1. treated, generally, as a statute enacted by the Congress 1s treated;

for example, in the case of conflict between the provisions of a treaty and

those of a statute, the latter in time prenails, and so, it would seen, ·

treaty, like a statute, night be mconstitutional wod, like a statute, could have no validity 11 it contravened the Constitution.

In the case of The Cherokee Tobacco 700B (L wall. %16 (1870),

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which bald that • later statute promiled over the terms of a treaty, the

court observed, relative to Article IV, soc. 2 of the Constitution that:

"It need bardly be said that a treaty cannot change the Constitution or be held mild it in valetica of that instrument. This results from the nature and fundamental principles of our government."

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