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to own land abroad, and in return we gave foreigners the privilege here.

Senator FERGUSON. There is a new treaty before the Foreign Relations Committee now that provides for all professions, even the practice of law.

Mr. CHAFEE. Yes, sir.

Senator FERGUSON. Should a man be able to come into the United States and because he could pass a bar association exam, even though he was a foreigner, I mean an alien, be able to practice law?

Mr. CHAFEE. That is a question that I am willing to leave to the judgment of you and your associates in the Senate.

Senator FERGUSON. That is one of the questions. Then the mostfavorable-nations clause in that treaty, and it has one, would extend the practice of law to most of the other nations.

Mr. CHAFEE. I hesitate a little on that. I think it is a question of judgment.

Senator FERGUSON. There is a question also on the practice of medicine?

Mr. CHAFEE. Oh, yes.

Senator FERGUSON. Whether a man should not owe allegiance to the country whose citizens he is treating because he could do great damage to them.

Mr. CHAFEE. It is awfully convenient when you are traveling to find an American dentist.

There were four things that seemed to the Philadelphia convention very important about treaties, and the first was that the scope of the treaty power should be very wide. You spoke this morning, sir, or this afternoon, of changing the balance, but what I would like to bring out is that in foreign affairs the balance was always for the national power.

Under the Articles of Confederation the States were everything in domestic matters, and the Nation was hardly anything in domestic matters, but in foreign affairs, even under the Articles of Confederation it was just the other way, the Nation was everything and the States were nothing.

Senator FERGUSON. That is true, but if you are not careful everything the State was is being taken away. That is what the people coming here are saying, that that is being taken away by virtue of this foreign power.

Mr. CHAFEE. I say that is a matter for you gentlemen to consider when it comes before you. If Senators do not pay enough attention to treaties, that is another matter. You do not need a constitutional amendment to get you to pay attention, all you need is a New Year's resolution.

Senator FERGUSON. I am afraid a New Year's resolution would not do it. I did not want to be critical of the Senate, I was merely bringing it up as to what happens, and I think it is well that we discuss these things frankly in committee so that we see the whole problem that is before us, and it is a very important one. This is a very important subject.

Mr. CHAFEE. On a thing like this Greek thing it was almost a foregone conclusion. On any controversial treaty you are not going to pass it on a bare quorum.

Senator FERGUSON. No, no. That treaty that did pass with six votes because there was no quorum call, no Senator could be accused of being negligent. It was one of those things that of the six men there none of them saw fit to ask for a quorum.

Mr. CHAFEE. The Philadelphia convention carried that idea into the convention except to put teeth into the national power. Now this thing that has been complained about in connection with the migratory bird case is that the National Government has power to do more in treaties than it has in domestic affairs.

The reason for that is plain because in domestic affairs Congress can go up to a certain point and then the States take over. There is not going to be any vacuum. The States do most of the domestic governing that has always been expected, and it has always worked out that way. But in foreign affairs if you stop the Federal Government the States cannot take over.

Senator FERGUSON. But you can see in the migratory bird case, Professor, how it operates here, the mere fact that a duck nests in Canada and flies down over Missouri, the State loses the power to give to its citizen the right to shoot the duck for food, so it becomes a very important thing.

Mr. CHAFEE. That is so, but I have not heard any proponent of this amendment say in writing or orally that he thought that was a bad treaty or bad statute.

Senator FERGUSON. But that is an important matter.

Mr. CHAFEE. It is. It is a question of judgment, of course.

Senator FERGUSON. You also find, I believe, that if the man out on his duck pond does shoot it, it becomes a Federal crime, whereas before it was only a State crime, and they could allow it to be no crime.

Mr. CHAFEE. That is just like the situation up at Mount Acadia National Park near where I spend the summer, it used to be a State crime to overspeed on the mountain, and now it is a Federal crime, but we have a national park.

The Philadelphia convention felt that in foreign affairs the Nation ought to be able to act all over the lot because otherwise nobody could act. The second thing they were anxious to do is to guard the Nation against unwise actions and correction. They were just as aware of the dangers as the proponents here. They were worried that if they gave the Senate alone the power to make treaties that you might sell a big slice of territory to somebody. They were afraid that if they gave the President the power he might make a deal with France, and then when he was impeached he would go over to live on the bounty of France.

So they decided to combine the two, to have the President and twothirds of the Senate, and they spent a lot of time on it, more than they did on almost anything else. When they got through people like Hamilton and John Jay felt they had done a good job. They did not want it too easy to make treaties.

On the other hand, my third point is that they did not want to make it too hard to make treaties. They did not want to obtain complete safety from bad treaties by making it impossible to make good treaties. There is very little chance that we are going to make a binding treaty if the fellow on the other side does not think it is worth bargaining with us.

One suggestion was that you ought to have two-thirds of the Senate, and Hamilton said that would be a terrible barrier. The other suggestion was to let the House participate in the ratification, and then the other proposal was very much like these proposed amendments, not to let the treaty take effect until there had been an act of Congress. Both the motions were thoroughly discussed, and they were voted down 8 to 1 and 10 to 1. Gouverneur Morris moved that no treaty should be binding which is not ratified by the law. That is practically the amendment before you, and that was voted down 8 to 1.

Then it was brought up that the House should participate in ratification, and that was voted down 10 to 1.

During the struggle over ratification one of the objections in the State convention was made that the House ought to take part, and there were some very careful arguments about it, they said secrecy was very important in making treaties; that it was very hard to have secrecy in such a large body as the House.

Senator FERGUSON. Professor, we have a vote at 4:30, and it is nearly that time. I do not know whether we will be able to hear you today.

Mr. CHAFEE. Could I say three sentences more?

Senator FERGUSON. Yes.

Mr. CHAFEE. We have new dangers, and we have new needs. We are like a boy on his twenty-first birthday; it is a different kind of world, but he has to face it bravely and courageously. Now the framers trusted the Senate to distinguish between good and bad treaties. What is good and what is bad is different from what it used to be. But they left the thing flexible, trusting you to use your judgment with new needs and new dangers to do the right thing. If you approve this amendment it shows that you do not trust yourselves. You will be giving away a big slice of your power at a time when this Nation is assuming heavier responsibility in the world than it ever has had before.

Senator FERGUSON. As to trusting ourselves, it may be well that we tell the citizens back home that they need a brake on us, the way we are spending money down here. It may be that they ought to have a brake so that we cannot do things that we are doing, I do not know because that is for the citizens, but that is why we have you here telling us that we ought to trust ourselves, and I imagine that some others will come here and say, "We don't want to let you trust yourselves; we want to put up a red flag saying you can't go by."

Mr. CHAFEE. There is no real evil that anybody points to that justifies it. They cannot point to a single bad treaty.

Senator FERGUSON. Suppose some of the people are objecting to what happened in California, not on the merits of the case but on the proposition that a State law that barred certain people from owning real estate was set aside. Now there may be people in Michigan that if they knew an alien could practice medicine in Detroit the same as any citizen, they would not want it. They might feel that when they go to a physician they would want him to be at least a citizen and owe allegiance to this country.

us.

I do not know. But those are the questions that are presented to

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Mr. CHAFEE. This amendment does not say whether it is retroactive. It would have to be retroactive to upset the United Nations Charter, and then you would upset hundreds of other treaties. I have never heard so much fuss as I have about the lower court. I hardly think it is worth putting in the case book.

Senator FERGUSON. It has been set aside.

Mr. CHAFEE. Yes, it has been set aside, and I should think we ought to stop worrying about it now.

Senator FERGUSON. Suppose they appeal and the upper court says that the lower court was right? The people cannot stop worrying. Mr. CHAFEE. If you get a Supreme Court decision then there will be some need to think about it then.

Senator FERGUSON. I think one of the things that disturbs the people is that people were coming in with legislative acts and putting in the preamble the fact that now certain things could be done because of the United Nations Charter. That is one of the things involved here.

Mr. CHAFEE. I thought that-was it the Lesinski bill? It was defeated?

Senator FERGUSON. Yes.

Mr. CHAFEE. That is what is going to happen if any of these terrible things are put before you. You will defeat them.

Senator FERGUSON. Doctor, you have not finished?

Mr. CHAFEE. You have my statement, and that will suffice.

Senator FERGUSON. The committee will recess until 10 o'clock tomorrow morning.

(Whereupon, at 4:30 p. m., the subcommittee recessed to reconvene at 10 a. m. Thursday, May 22, 1952.)

TREATIES AND EXECUTIVE AGREEMENTS

THURSDAY, MAY 22, 1952

UNITED STATES SENATE,

SUBCOMMITTEE OF THE COMMITTEE ON THE JUDICIARY,

Washington, D. C. The subcommittee met, pursuant to recess, at 10 a. m., in room P-36, the Capitol, Hon. Pat McCarran (chairman) presiding.

Present: Senators McCarran, O'Conor, Ferguson, and Hendrickson. Also present: J. G. Sourwine, committee counsel; Wayne H. Smithey, professional staff member.

The CHAIRMAN. The committee will come to order.

Senate Joint Resolution 130 is before the committee. We have here this morning to be heard Mr. Holman and Judge Phillips.

Senator FERGUSON. Could I inquire as to whether or not there will be a meeting next Tuesday of the committee?

The CHAIRMAN. Of the full committee?

Senator FERGUSON. No; of this subcommittee to take testimony. The CHAIRMAN. There is a request from the Under Secretary of State requesting an opportunity to come before the committee on next Tuesday.

Senator FERGUSON. Then Mr. Eichelberger would be able to testify at the same time?

The CHAIRMAN. Yes.

Senator FERGUSON. Thank you.

Senator HENDRICKSON. Mr. Chairman, I would like to ask if the State Department is going to testify we would have the right to recall members of the American Bar Association?

The CHAIRMAN. You certainly will have.

Senator FERGUSON. Or it may be possible that if we send them a copy of the transcript they can send a brief.

The CHAIRMAN. Mr. Holman?

Mr. HOLMAN. Judge Phillips just suggested that he has a legal engagement, and I would be glad to defer to him.

The CHAIRMAN. Very well.

STATEMENT OF JUDGE ORIE L. PHILLIPS, WASHINGTON, D. C.

The CHAIRMAN. Any statement that you have to make with reference to Senate Joint Resolution 130 the committee will be glad to hear, Judge.

Judge PHILLIPS. Thank you, Senator.

My name is Orie L. Phillips, and I am a member of the standing committee on peace and law through the United Nations of the American Bar Association.

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