CM
3 9999 06542 014 i national recovery administration
DIVISION OF REVIEW
THE TREATY-MAKING POWER OF THE UNITED STATES
BY
ABRAHAM 0. WEINFELD
WORK MATERIALS NO. 24
/no. 2 A
\
LEGAL RESEARCH SECTION
December, 1935
COlIFIDENTIil,
MEMORANDUM TO; SECTION HEADS DecemlDer 30,
19 3 5
SUBJECT: WORK ^TERIALS NO. 24
THE TREATY-MAKINC POWER OF THE UNITED STATES
This preliminary draft of THE TREATY-MAtaNC- POWER
OF THE UNITED STATES by AbraJisjn C. Weinfeld is made
available for confidential use within the Division of
Review because of its usefulness in connection with
other studies.
It is a preliminary draft — an exploration of
the field as a basis for further work. Not all material
in it has as yet been verified and checked, nor does it
present a fully rounded treatment of the subject.
L. C- Marshall
Director, Division of Reviep^
J351 -1-
13 My 35 g
TABLE OF CONTENTS
-oOo-
Pa^e
smaiARY. 1
INTRODUCTION 5
CHAPTER I. Are Labor Conditions a Proper SulDject
of International Negotiations and
Treaties? 7
CHAPTER II.
CHAPTER III.
CHAPTKR IV.
CHAPTER V.
CHAPTER VI.
CHAPTER VII,
Have the States Pov;er, with Consent of
Congress, to Enter into Agreements or
Compacts with Poreign Nations Regul3.ting
Labor Conditions?
13
Has the Pederal Government Power to Enter
into Treaties with Poreign Na.tions Regu-
lating Labor Conditions in Businesses,
the Regulation of "Which has been Reserved
to the States?
26
Has the Pederal Q-overnment Power to Enter
into Treaties with Poreign Nations Regu-
lating Labor Conditions in Businesses,
the Regulation of Which has been Delegated
to Congress?
Is the Due Process Clause of the Pifth
Amendment a Limitation on the Power of
the Pederal Government to Enter into
Treaties? 42
A. Minimum 17 ages 48
B. Maximum Hours of Labor 48
C. prohibition of Child Labor 49
Does a Treaty that Regulates Labor Condi-
tions Require Legislation to Become
Effective? 51
Ratification by the United States
of Conventions Adopted by the Inter-
national Labor Conference 55
A. Obligations of the United States
with Reference to Draft Conventions 55
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BIBLIOSRAPHT
B. Conventions Adopted "bj the Inter-
national Lator Organization prior
to the United States Becoming a
Menber Thereof and Those Adopted
Later ,
C. Advisability of Ratifying Conventions
Drafted by the International Labor
Organization 69
1. Conventions adopted in June 1935 70
2. Conventions adopted prior to J-one
1935 *. 71
a) Ho-'ors of TTcrk 71
b) Child Labor 72
c) Labor conditions of seamen 72
d) Protection of vromen 72
e) Agriculture 73
f ) Social Ins-jrance 73
g) Unecrplo-Tnent 73
h) Forced Labor 73
i) Fee charging employnent agencies 74
^) Emigrants 74
D. Summary of Arguments For and Against
Ratification of Conventions of the
International Labor Organization 74
Argument s pro 74
Arg"aments contra 75
CHAPIZR "III. Canadian Constitutional Problems in
Connection with Ratification of Conventions
of the International Labor Organization.
Comparison T7ith Problems in the United States 76
CHAPTUR IX. Suggestions as to Treaties Trith Canada Abolish-
ing Child Labor and Limiting Hours of Labor 85
I-Io-ars of Labor 85
Child Labor 56
aa
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SIM/IARY
INTRODUCTION. The United States Government must face the problem of re^latin^-
labor conditions "by international treaties because as a member of the Inter-
national Labor Organization the United States is under a duty to submit draft
conventions and recommendations adopted by International Labor Conferences to
the competent authorities in this country for action.
CHAPTER I
ARE LABOR CONDITIONS A PROPER SUBJECT OF INTERNATIONAL NEGOTIATIONS AlTD
TREATIES? In the last thirty years numerous treaties have been entered into
betvreen and among nations for the purpose of regulating labor conditions. Con-
spicuous among them are the conventions adopted by International Labor Con-
ferences after the World War of nhich about 35 have been ratified by numerous
nations. This treatment by the nations of the world has made labor conditions
a proper subject for international negotiations and treaties.
CHAPTER II
HAVE THE STA'TES POWER WITH CONSENT OP CONGRESS TO ENTER INTO AGREEMENTS
OR COLIPACTS WITH FOREIGN NATIONS REGULATING LABOR CONDITIONS? Though the
United States Constitution permits States, with consent of Congress, to enter
into agreements or compacts with foreign nations, that power does not extend
to agreements or compacts regulating labor conditions. The agreements or
compacts contemplated by the Constitution involve settlement of boundary lines
and matters connected therewith which are intended to create a permanent state
of things and are fulfilled by a single act like an act of cession. Labor
conditions are not within the scope of those agreements or compacts.
CHAPTER III
HAS THE FEDERAL GOVEBNldENT POWER TO ENTER INTO TREATIES WITH FOREIGN
NATIONS REGULATING LABOR CONDITIONS IN BUSINESSES, THE REGULATION OF WHICH
HAS BEEN RESERVED TO THE STATES? The treaty-maJ^ing power of the federal gov-
ernment doer extend to matters reserved to the states by the federal consti-
tution. This is the effect of an unbroken line of decisions of the Supreme
Court of the United States. The federal government therefore has the power
to enter into treaties regulating labor conditions even though the regulation
of, such conditions may have been reserved to the States by the Constitution.
CHAPTER IV
HAS THE FEDERAL GOVERiaiEl^ POWER TO ENTER INTO TREATIES WITH FOREIGN
NATIONS REGULATING LABOR CONDITIONS IN BUSINESSES, THE REGULATION OF WHICH
HAS BEEN DELEGATED TO CONGRESS? The federal government has such power. A
treaty which is self-executing, that is, a treaty which shows an intention
that it be enforced without further legislation, stands on an equal footing
with an act of Congress. Such a treaty may repeal an act of Congress dealing
with the same subject-matter and an act of Congress may repeal a treaty;
whichever is later in time prevails.
CHAPTER V
IS THE DUE PROCESS CLAUSE OF THE FIFTH AIvIENDI^IENT A LIMITATION ON THE
POWER OF THE FEDERAL GOVERlflviENT TO ENTER INTO TREATIES? Proceedings in the
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State conventions called to ratify the federal Constitution show that the
people when ratifying the federal Constitution did so with the understanding
that the Constitution would not encroach on their personal liberties. The
due process clause is stipposed to protect those liberties. Expressions "by the
Supreme Court of the United States in cases not involving treaties indicate
that the Supreme Court will probably apply the due process test to treaties.
Therefore no treaty should be entered into at this time involving fixing of
minimum wages because that has been held unconstitutional in the case of
Adkins v. Children's Hospital, 261 U.S. 525 (1923). On the other hand, pro-
hibition of child labor may be included in a treaty because the Supreme Court
has never held such prohibition to violate due process of law; the court did
hold that prohibition of child labor in hazardous occupations does not violate
due process. Similarly a treaty may be entered into regulating maximum hours
of labor because the Supreme Court has never held such regulation to violate
due process; the Supreme Court did hold a statute fixing maximum hours in any
mill, factor^'- or manufacturing establishment not to violate due process.
CHAPTER VI
DOES A TEEATY THAT REGULATES LABOR COIODITIONS REQUIRE LEGISLATION TO BE-
COlvCE EEEECTIVE? A treaty to reg-olate labor conditions must necessarily leave
a vast field of regulation of details to the legislatures of the contracting
parties. Normally, therefore, a treaty of that nature cannot be self-execu-
ting. Eor that reason no treaty regulating labor conditions should be ex-
pected to become effective until it is made effective by legislation. All
conventions of the International Labor Organization call for legislation by
the states who are signatories to the convention by v/ay of giving effect to
the conventions.
CHAPTER VII
RATIFICATION BY THE UlTITED STATES OF CONVEl^IONS ADOPTED BY THE INTER-
NATIONAL LABOR COliB^RENCE. Though under Article 405 of the Constitution of
the International Labor Organization, a Federal state the power of which to
enter into labor conventions is subject to limitations may treat a draft con-
vention as a recommendation only, the United States is not in position to
avail itself of that privilege; the power of the United States government to
enter into labor conventions is not subject to limitations contemplated by
the framers of Article 405. If the government had the right to treat a draft
convention as a recommendation only, it vrould be under obligation to do no
more than to forward a copy of the draft convention to the Congress and to the
48 legislators, they to enact such legislation in conformity with the recom-
mendation as they might choose to.
Since the United States must treat a draft convention as a draft con-
vention, it is under obligation to submit to the Senate and to the House of
Representatives the conventions adopted at the June 1955 conference. If those
conventions or axiy of them obtain the approval of two-thirds of the Senate and
the consent of the majority of the House of Representatives, the President may
rpti:<7 them. Thereafter it will be up to Congress to enact legislation to
givc) o:.i"ect to the convention.
The United States is under no duty to act on the conventions adopted by
the International Labor Organization prior to June 1935, but it may ratify
them, the procedure being the same as outlined v/ith reference to the conven-
9361
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tions adopted in Jiuie 1935, Each convention should first "be passed upon "by
experts in the field covered by the convention, and if it is found adapted to
American conditions, the convention may "be submitted to the Senate and to the
House.
In favor of ratification of the conventions of the International Labor
Or£;anization, it may be said that a statute passed pursuant to a convention
would be binding throughout the country and would, therefore, not result in
undue advantages or disadvantages to various states. Such a statute would ex-
press the popular v/ill since it would have the backing of the House and of the
Senate. Bad working conditions in other countries tend to lower the conditions
here, while raising conditions in other countries tends to support or even to
raise conditions in this country. The International Labor Organization is not
necessarily tied to the League of Nations. It has several members who are not
members of the League and could function even if the League should cease to
exist.
Against ratification it may be said that the country dislikes foreign en-
tanglements, and also that if another party to a convention should complain
that the United States has failed to live up to its obligations under a con-
vention, such complaint might ultimately come before the Permanent Court of
International Justice, It is to be borne in mind, however, that membership
in the International Labor Organization contemplates the possibility of rati-
fication by the United States of at least some of the International Labor
Organization conventions. Eatification necessarily carries with it the pos-
sibility of a complaint being made by another member, and ultimately coming
before the Permanent Court, and the further possibility that the Court might
indicate "measures of an economic character" which other members "would be
justified in adopting against a defaulting government." So far none of the
59 members of the International Labor Organization has ever made a complaint
against another member. Cooperation with others always necessarily involves
a certain measure of restraint,
CHAPTER VIII
CANADIAN CONSTITUTIONAL PROBLEMS IN CONNECTION WITH RATIFICATION OF CON-
VENTIONS OF THE INTERNATIONAL LABOR ORGANIZATION. COICPARISON WITH PROBLEMS
IN THE UNITED STATES. The procedure by which treaties are made on behalf of
Canada is so different from the procedure pursued in the United States, that
there is no basis for comparison. As to distribution of legislative powers,
in Canada the Provinces enjoy legislative powers which are exclusively enumer-
ated as belonging to the Provinces, while all other powers rest with the
Dominion government. Though the method of distribution of legislative power
is the very opposite of the method in the United States, labor conditions are
normally within the jurisdiction of the Provinces, just as they are normally
within the jurisdiction of the States in the United States.
There is no due process limitation in Canada.
Several conventions drafted by the International Labor Organization and
relating to labor conditions of seamen have been ratified on behalf of Canada,
and have been followed by legislation passed by the Dominion parliament. That
body has jurisdiction over labor conditions of seamen, irrespective of inter-
national engagements,
9361
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As to those conventions of the International Labor Organization which
regulate labor conditions in fields normally \7ithin the Jurisdiction of the
Provinces, the procedure v/as, until recently, to refer the conventions to the
Provinces and to the Dominion Parliament for such action as they might choose
to talce thereon within the scope of their normal legislative powers. In 1931
and 1932 decisions of the highest constitutional court in the British Empire
emphasized the power of the Canadian Parliament to enact legislation by v/ay
of giving effect to international conventions. In line with those decisions,
in 1935 the Canadian government caused to be ratified several conventions
which regulate labor conditions normally within Provincial jurisdiction, and
the Parliament of Canada enacted legislation to give effect to those conven-
tions in June and o'uly 1935.
CHAPTER IX
SUGGESTIONS AS TO TEEATIES WITH CAMDA ABOLISHING CHILD LABOR AND
LIMITING HOURS OF LABOR. Since the standards fixed in the International Labor
Organization conventions are generally too low for an industrially advanced
country like the United States, the treaty power might be used to establish
higher standards by a separate treaty with one or more powers as, for instance,
by a treaty with Canada. Specifically, attention should be directed to the
economic and political possibilities of a treaty with Canada limiting the age
of admission of children to employment to 15, or perhaps 16 years, and limit-
ing the hours of labor to 8 in the day and 40 in the week.
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THE TR3ATY-MAKING POWER OF THE UNITED STATES
On Auf-^st 20, 1934, the United States "became a member of the Internar-
tional Labor Organization.^ -^ The General Conference of that organization
which met in Geneva in June 1935 adopted a series of draft conventions, in«
eluding a convention concerning the employment of women on underground '.70 rk
in mines, a convention limiting hours of work in coal mines, in glass "bottle
works, and others. (2) Within a year or at the latest within eighteen months
from June, 1935, it will "be necessary for the United States to "bring the
conventions as well as the recommendations adopted at that conference ""be-
fore the authority or authorities within whose competence the matter lies,
for the enactment of legislation or other action. "(2) It is necessary,
therefore, not only for the purposes of the National Recovery Administration
"but also for the purposes of the government in general to consider the en-
tire subject in order to determine first, what governmental powers there are
in this country competent to deal with labor conditions internationally a.nd,
second, what procedure should be followed. For the sake of brevity the
phrase "labor conditions" will be used instead of "maximum hours, minimum
wages, child labor, and other conditions of employment". The problem seems
logically to embrace the following questions: 1. Are labor conditions a
proper subject of international negotiations and treaties? 2. Have the
States power with consent of Congress to enter into agreements or cocrpacts
with foreign nations regulating labor conditions? 3, Has the federal gov-
ernment power to enter into treaties with foreign nations regulating labor
conditions in businesses the regulation of which has been reserved to the
States? 4, Has the federal government power to enter into treaties with
foreign nations regulating labor conditions in businesses the regulation of
which has been delegated to Congress? 5. If there is power under any of the
above categories, are there limitations on that power, and what are they?
6. Would treaties be binding when ratified and agreements or compacts when
made with consent of Congress, or would they be binding only when followed
by legislation giving effect to the treaty or to the agreement or compact?
7. Can anything be learned from the proceedings of other federal States
which ratified conventions drafted by the International Labor Organization,
such as Canada, Germany before Hitler, Switzerland and others? 8. What are
the specific problems, apart from those already raised, that may come up in
connection with possible ratification of the International Labor Organization
conventions or in connection with concluding other treaties dealing with
labor conditions?
The applicable provisions of the Constitution of the United States are
as follows:
(1) Proclamation by President Franklin D. Roosevelt dated Sept. 10, 1934,
Treaty Series, No. 874, p. 1,
(2) International Labor Office, Official Bulletin, August 15, 1935, vol. XK,
No, 3.
(3) Constitution of the Internationel Labor Organization, Art. 405, Treaty
Series, No, 874, p, 13,
9361
Article I. Section 10.
"No State shall enter into any Treaty, Alliance, or Confedera-
tion; ••. No State shall, without the Consent of Congress, *••
enter into any Agreement or Compact with another State, or
with a foreign Power, •••"
Article II. Section 2.
"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 III. Section 2.
"The judicial Power shall extend to all Cases, in Law and
Bquity, arising under this Constitution, the Laws of the
United States, and Treaties made, or which shall "be made,
under their Authority; ..."
Article VI.
"•••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 he the supreme Law of the Land, and
the Judges in every State shall he "bound there"by, any Thing
in the Constitution or Laws of any State to the Contrary
notwithstanding* . • "
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CHAPT2R I.
AZE IA30R COilDITIOlIS A PROPER STJBJECT OF lilTER-
ITATIOML ilEGOTIATIOlT AiTD TREATIES?
The Siipreme Coiirt of the United States has said that treaties are
"designed to include all those subjects which in the ordinary intercourse
of nations have usually "been made subjects of negotiation and treaty. " (4)
"That the treaty making power of the United Sta.tes extends to all proper
subjects of negotiations between our governraent and the governments of
other nations is clear." (5) "The treaty making power vested in our govern-
ment extends to all proper subjects of negotiation with foreign governments. "
(6) "The treaty-malcing power of the United States is not limited by an^'-
express provision of the Constitution, and, though it does not extend 'so
far as to authorize what the Constitution forbids', it does extend to all
proper subjects of negotiation between our government and other nations,
Geofroy v. Riggs, 133 U.S. 253, 266, 267; Re Ross, 140 U.S. 453, 465; Missouri
V. Holland, 252 U.S. 416." (7) "The treaty-making power should be considered
as broad enough to cover all subjects that properly pertain to our foreign
relations, . .while through treaties it wo"uld be impossible to change the
structure of our government, the treaty making power extends to all questions
that are appropriately dealt with in dealings between nations and in the
peaceful adjustment of international controversies. Former President Taft
has expressed the view that the treaty-making pov;er is dealing \7ith our
foreign relations and when we deal with o"ar foreign relations, we are a
nation undivided and presenting a united front. Ever^'thing, therefore, that
is natural or customarily involved in such foreign relations, a treaty may
cover, whether beyond the law-making power of Congress and within the control
of state legislatures or not (Taft, Our Chief Magistrate and Hin Powers,
p. 110)" (8)
Have labor conditions become matters which "in the ordinary/" inter-
course of nations" are "usually made subjects of negotiation and treaty"?
Are they "proper" subjects for negotiation and treatir between our government
and foreign governments? It was not the intention of the framers of the
Constitution in 1787 to limit the subject matters of treaties to those only
that were then subjects of treaties. There is no evidence of any such
intention and since the Constitution was built for an indefinite future it is
reasonable to assume that its framers contemplated the possibility of changes
in the subject matter of treaties and did not intend to freeze the foreign
relations of the United States. Tlie practice of the government is ill-uminat-
ing. In the course of its history the United States has entered into
treaties covering n-umerous subject-matters which had not been regulated by
(4) Holmes V. Jennison, 14 Pet. 540, 10 L. Ed. 579. (1840 )
(5) Geofroy v. Riggs, 131 U.S. 258, 33 L. Ed. 642 (1889)
(6) Ross V. i:clntyre, 140 U.S. 455, 35 L. Ed. 581 (1891 )
(7) Asalorra v. City of Seattle, 265 U.S. 332, 68 L. Ed. 332 (1923)
(8) Charles E. Hughes: Tlie Supreme Co^jrt of the United States, "op. Ill,
114, (1928),
9361
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international treaties prior to 1787, Some of the subject-matters are:
Unification of the pharraacopoeial fornmlr.s for potent drugs (1905) (9);
suppression of the abuse of opium and other dmgs (1915, 1933) (lO); pro-
tection of industrial property (1887, 1892, 1902) (ll); suppression of plague
and cholera (1907) (12); repression of the trade in white women (l908) (l3);
protection of inventions, patents, trade— marks, designs and industrial
methods (numerous agreements going hack to ahout I860); literary?" and artistic
copyright (numerous agreements going "bad: to the 1890's); repression of the
circulation of obscene publications (1911) (14); regulation of technical
details and partial regulation of rates for services in the field of Inter-
national '.Tireless Telegraph (1912) (lo); commercial aviation (1931 ) (16 );
limitation of naval armament (1922) (17); setting up of international bureaus
for gathering and dissemination of technical information, like the Inter-
national Bureau of heights and Measures (1878) (18); the Institute of
Agriculture (1908) (l9); the International Office of Public Health (1908) (20),
As to additional "new" subject matter, not only were treaties entered
into to regulate such mattors but the treaties wore enforced by the courts,
for instance, a treaty regulating the killing of migratory birds (21) or a
treaty extending the time for filing applications for patents (22),
Tlie conclusion is that, though a matter may not have been thought of
by the framers of the Constitution as a subject-ms.tter of international
treaties, such matter is a "proper" subject for treaties in oijr time provided
it is actually dealt with in treaties entered into by nations in their
ordinary intercourse.
To what extent have labor conditions become subjects of actual negotia-
tions and treaties? Early efforts to mal^e them such are described in a report
submitted b;^ the French General Confederation of Labor (Confederation Generals
du Travail) to the Conference of Allied Trade Unions held at Leeds, England,
in 1916 (23). Negotiations b;/" governments were carried on on numerous
(9)
(10
(11
(12
(13
(14
(15
(16
(17
(18
(19
(20
(21
(22
(23)
William 11, I.Ialloy, Treaties, Conventions, International Acts, Protocols
and Agreements between the United States of America and other Pov/ers,
p,2209,
3025; U.S.Stat. At L. vol. 48, part II, p. 1543.
1935, 1943 et seq,
2066
Malloy
Malloy
Malloy
Malloy
Malloy
Mallo^^
op.
op,
op.
op,
op.
OX),
cit.
cit.
cit,
cit.
cit.
cit.
U. S. Stat. a. L
p.
pp.
P»
p.
p.
p.
2131
2918
2889
vol. 47, part 2, p. 1901
Malloy, op, cit., p. 3100
Malloy, op, cit., p. 1924
Malloy, op, cit,, p. 2140
Malloy, op, cit., p, 2214
Missouri v. Holland, 252 U.S. 416, 54 L. Ed. 541 (1920 ),
General Electric Co, v. Robertson, 21 led.. (2d) 214, Dist. Ct. D. Md.
(1927)
James T. Shotwell: The Origins of the International Labor Organization,
1934, Vol. II. pp. 11-12.
9351
occasions at the end of the 19th century. The Sv/iss government v/as
especially active in initiating^ conferences aiming at international regula^-
tion of some later conditions. One of the conferences called by that
government was transferred to Berlin at the request of the G-erman Ei.roeror
in 1890.
In 1882 and 1897 France and Belgiiun, with a view to protecting nigrar-
tor^- v/orkers, concluded agreements insuring to depositors in savings Panics
greater facilities for deposit, transfer, and repayment. In 1904 Prance
and Italy entered into an agreement which in addition to facilitating
tra.nsfer of monies deposited in savings "banlcs regulated questions of -i/ork-
men's pensions in case of migration, workmen's compensation for accidents,
unemployment payments, protection of minors employed in industries, the
development of an inspection service in factories, and puhlication of
annual reports on the application of the laws and regulations relating to
the work of women and children. Numerous agreements, chiefly relating to
accident insurance, were thereafter signed "between various Europe^ji
countries in the years 1904 to 1913 of which 16 were enumerated in the
report to the Leeds Conference. There v/as also a treaty entered into "be-
tween the Transvaal and Ivlozarabiqae for the protection of native laborers .
The Franco-Danish Treaty of Arbitration entered into in 1911 lorovided
among the matters subject to arbitration, those relating to the international
protection of workers. In 1906 tv/o conventions were entered into in Berne,
Sv/itzerland; one prohibited the use of v/hite phosphorus in the manufacture
of matches which has now been adhered to by thirty-one countries; the other
prohibited night work for women which also has been adhered to by a
substantial number of nations. In 1913 another Conference was held at
Berne, Si'/'it zerland, composed of experts representing governments whose
purpose it was to formulate additional international agreements prohibiting
night work by young workers and fixing a ten-hour day for women. That
Conference was to be follov/ed bv a conference of diplomats for the purpose
of entering into international conventions, but the World War put an end
to further steps in that direction until the creation of the International
Labor Organizations.
Article XIII of the Treaty of Versailles is the Constitution of
the International Labor OrgaJiization. The first Conference of that organiza-
tion was held in Washington, D. C. , in 1919 and at that session six
conventions were drafted and submitted to members for signature. 'Then the
United States refused to ratify the Treaty of Versailles it also severed
its connection with the International Labor Organization. But on August ?jO,
1934, the United States resumed the connection and became a member of the
organization. The following is a list of the conventions drafted by the
International Labor Organization together v/ith the year when each conven-
tion v;ent into effect and the number of nations that had ratified each
convention by July 1935. (24)
(24) International Labor Organization, Draft Conventions and Recomnend-
ations Adopted by the International Labor Conference at its
Eighteen sessions held 1919-1934. International Labor Office,
Geneva, 1934; The Progress of Ratifications, International Labor
Office, July 1935.
9361
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Ntuii-
Came
Total
"ber
: into
: number ■
of
: Suoj e c t -mat t e r .
• force
of rati-
con-
in the
: fications.
ven-
, year.
tion.
1.
Limits the hours of work in industrial under-
takinj^^s to 8 in the day & 48 in the week
1921
22
2.
Concerning unemployment
: 1921
30
3.
Concerning emplo^rrnent of women 'oefore and
after child— "birth
: 1921
: 16
4. ,
ProhiDiting the emplo;;,!nent of v/onen in indus-
trial, undertakings during the night
1921
30
5.
Fixing the ninimurii age for admission of
children to industrial em;oloynent
. 1921
26
6. :
Concerning night work of ^'•oung -oersons em-
"oloyed in industrial undertakings
1921
30
7. :
Fixing the minimum age for admission of
children to employment at sea "
1921
28
8. '
Concerning ijnemp 103^1 en t indemnities in case
of loss or foimdering of shiio
1925
22
9. :
Estaolishing facilities for finding employ-
ment for seamen
1921
23
10. :
Concerning age of admission of children and
minors in agriculture !
1923 ,
17
11. :
Concerning rights of association and com-
pensation of agriculturs-1 workers 3
1923 :
27
12.
Concerning worl<raen*s compensation in
agriculture :
1923 ;
19
13. :
Concerning the use of white lead in painting !
1923 :
23
14.
Concerning the application of the weelily rest ;
in industrial undert airings !
1923 J
26
15.
Fixing minim-urn age for the aojiission of yoiing
persons to employment as trimmers or stokers.. ;
1922 ;
28
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N-um-
: Came
: Total
ter
into
: number
of
: Sab ,1 e c t -nat t er ..
: force
: of rati-
con-
: in the
: fications.
ven-
year.
tion.
16.
Medical examination of children and yoiing
, ^Tercons eTnplo3''ed at sea
1922
26
17.
Concerning TTorlcr.ien ' s Compensation for
Accidents
: 1927
16
18.
Concerning;; './orlanen's Com )onsat.-on for Occu-
pational Diseases
1927
: 28
19.
Concerning equality of treatment of national
and foreign workers a;^ regards worlnnen's com-
pensation for accidents
: 1926
: 34
20,
Concerning-* ni'';h.t work in "bakeries
1928
: 10
21.
Concerning the simplification of the
inspection of i-imigrants on "board ship
1927
: 19
22. :
Concerning seamen's articles of agreement
1923
: 19
23. •
Concerj-iing the repatriation of seamen. .
1928
: 16
24.
Concerning siclcness insurance for v.-orkers i.n
1928
: 16
25. :
Concerning sickness insurance for
agr iciiJ-tui'al workers
1928
11
26. '
Concerning the creation of minirrom wage
fining nachiner;^'' ,
1930
18
27. :
Concerning the mar]:ing of t'l ■ weight on
hea\-2r packages trans-oorted ^cy v,;ssels :
1932
30
28. :
Concerning protection against accidents or
worliers employed in loading or imloading
ship s :
1932
1932 :
4
29. :
Concerning forced or compiilsorj- lalDor •
16
30. :
Concerning reg-olatiou "^f honors of work in :
commerce rnd offices :
1933 :
6
9361
-12-
Nim-
ter
' Came
. Total
of
SulD.i ect-mat t er .
into
: number
con-
force
; of rati-
ven-
in the
: fications.
tion.
year.
32.
Concerning the protection against accidents of
workers employed in loading or unloading ships,
r evi s e s ITo , 28
. 1934
: 5
33. :
Concerning the age of admission of children to
non-industrial employment '
. 1935
: 3
In view of all those iDona fide agreements entered into "between and
among numerous nations and in force for long periods of time it seems clear
that later conditions have "become a proper suhject of international
negotiations and treaties. Of course, the question as to "propriety" or
"impropriety" discussed herein is not "based on any rule of international
law; it is iDased on the constitutional law of the United States and arises
"because of our federal system of government. Eiough the Supreme Court has
never held any treatj.^ invalid on 8-ny ground, the statements of that court,
concurred in "b3'' practicaiily everj'' writer on the sulDJect, indicate that the
Supreme Court will inquire into the "propriety" of lahor conditions as a
sulDJect for an international treaty.
9361
-13-
CHAPTER II.
HAVE THE STATES P:T7ER, \'ITH CONSZiJT OF CONGRESS,
TO ENTER INTO AGREaAENi: OR COMxPAQTS WITII FOREIGN
NATIONS REGULATING 7:/30R CONDITIONS?
The Constitution of the United States, Article I, Section 10, provides:
"No State shall ent^r into any Treaty, Alliance or Con-
federation: • ••
"No State shall, vrithout the Consent of Congress, .. enter
into any Agreement or Compact with another State, or with a
foreign Power, ..."
A State may not enter into a treaty "bv.t it may enter into an agreement
or compact with conser-;. of Congress. Wlia.t is the difference "between a
"treaty" and an "agreement or compact"? Is not every treaty an agreement?
Mr. Justice Sutherland said in 1313: (25)
"•••The line of separation hetvifeen those compacts with
foreign powers which may Do made, with the consent of
Congress, and those which, "being 'treaties' may not "be
made "by any state under an;- conditions, has never "been
dra.wn, and remains vague and indefinite."
An attempt will "be made here to draw that line.
Since the Constitution sheds no light on the subject one naturally turns
to the proceedings of the federal convention. That convention "began its
deli"berations in Philadelphia in Lc/-. 1787. The period till July 26 was
devoted, to a general discussion of fundamental issueso Treaties were men-
tioned in connection with their svprer.acy over State legislation and in con^ec-
txcii '■ itli'1'i.chorgans of the federal government should he entrusted with the
power to malie treaties, as will appec.r in more detail in the next chapter;
"but no"body seems to have mentio.ied 'agreements or compacts". On July 26 a
Committee on Detail was created and tne Convention adjourned till August 6th
"that the Come, of detail mif_i have time to prepare and report the Constitu-
tion,"(25) r^Y^Q Committee on Jetail consisted of five mem'bers: John 1-^ut ledge
of South Carolina, Chairman; James Wilson of Pennsylvania, Edmund Randolph of
"Virginia, Nathaniel Gorhp.n of Massachusetts, and Oliver Ellsworth of Connec-
ticut, Several of the outlines and drafts prepared by some of those men
have "been preserved,. The fi: st time that the distinction "between "trea.tics"
and "agreements and comTDacts'' was introduced appears to have "been in connec-
tion with a draft of the Constitution in t; e handwriting of James Wilson. (27)
Section 10 of that c'^-clt read as follows:
(25) George Sufnerla.nd: Constitutional Power and World Affairs (1313)
p, 121 •
(26) Farrand: The Records of the poderal Convention, v. 2, p, 128
(27) Farrand: The Records of the Federal Convention, "Vol. 2, p. 163
9361
-14-
"10. No State shall enter into any Treaty, Alliance or Confeder-
ation; nor lay any Imposts or laities on Imports..."
The draft shows emendations in the hand^^Triting of Eutledge, made presiima"bly
after discussion with Wilson and other meraters of the Committee. Those
changes made the section read as follows:
"10, No State shall enter into any Treaty, Alliance, Confeder-
ation with any foreign Power nor witht. Const, of U, s.
into any agreement, or compact ^ith another State or Power;
nor lay any Imposts or Duties on Imports;..."
On August 6, 1778, Rutledge in "behalf of the Committee on Detail re-
ported to the Convention and submitted a draft of a Constitution which con-
tained Sections XII and XIII reading as follows: (28)
"XII, No State shall coin money; ••• nor enter into any
treaty, alliance or confederation; «..
"XIII. No State, without the consent of the Legislature
of the United States, shall emit bills of credit
•••; nor enter into any agreement or compact with
another State, or with any foreign power. ..."
The Convention continued its delih orations from August 6, till September
17, numerous changes and amendments were made, the "Committee of revision or
Stile & arrangement" was created which included in its memhership Madison
and Hamilton, the committee went over the document and reported Septemher
12,(29) "but nothing appears to have teen said or done by anybody about "agree-
ments or compacts" , and finally the provision was included in the Constitu-
tion as approved by the convention on September 17, 1787.
In the State conventions called to ratify the federal Constitution there
appears to have been no discussion or reference to "agreements or compacts."
(30)
Samuel Johnson: "A Dictionary of the English Language", 2nd ed., London,
1756, contains the following:
"Agreement ... Compact; bargain, conclusion of controversy;
stipulation.
"Compact_ ..... A contract; an accord; an agreement; a mutual
and settled appointment between two or more,
to do or to forbear something.
"Treaty. A compact of accommodation relating to public
affairs,"
(28) F^Trand, op. cit. vol, 2, p. 187
(29) Farrand, op. cit. vol. 2, p. 590, note 8.
(30) Jonathan Elliott : Debates on the Federal Constitution.
9361
-15-
Tnrjt , .ictionar"'" obvionslj" throrrs no light on the question.
The Articles of Confedorn^tion ncLo->tod in 1777 contrined the uords
"agrecrient" onC. "tre-.ty":
"Jjrticle VI. ¥o Sti'.te v/it/iout the consent of the
United States in Congress assembled, sho.ll send any
enbo.ssy to, or receive any em'basG3'' froii, or enter
into any conference, agreement, alliance or treaty
'.vith any king, prince or state.,,
"I'o two or nore States shall enter into any treaty,
confer oration or alliance rrhatever betneen them,
'..Itliout the consent of the United States in Congress
-.ssembled, s'oecifjring o.cciaiT.tely the purposes of
uhich the same is to be entered into, rhd hov; long-
it shall continue.
"I'o State shall laj,^ rny i.T'^onts or duties, \/hich ma;^
interfere with our stiT5i32at^ons in treati.es, entered
into by the United Spates in Congress assembled,
v.lth onj king J prince or s^^te, in "irjrsuance of cUiy
treaties already pro'oosed by Jongress, to the courts
of France and Spain,..,
"iU'ticle IX, Tne Tiited Sto.tes in Congress assembled
shall have the sole and exclusive right pnd pov7er of de-
termining on peace and war, exce-ot in the cases mention-
ed in the sixth o.rticle - of sending and receiving am-
bassadors ■■ entering into treaties DV.ci alliances, ]3ro-
7ided that '■'O treaty of conrierce shall be m.ade whereby
the legisla-^ive power of the res'.ective States shall
be restrained from imposin-^ such im^oosts and duties
on foreigners, as their own people are subjected to,
orfror ~or:hibiting the e^r^.ortation or imjportotion of
cny species of goods or commodities v/hat soever* . .
"ihe United States in Cong'.'ess assembled shall never
engage in a wor - nor ente./ into any treaties or al-
liances.. • unless nine States o.ssent to the som.e..."
":'h-ji;^-h the first nr.ragra-oh of Article VI mentions both an agreement and
a treaty, it contains no clue as to wh-,t the difx'erences between them might
be^. On the contrary'-, it creates the imoression that the word "agreement" was
inserted as a catch-all terr: to include everj/ possible understandings But a
consiueration of the variTiis draftr, thrt "oreceded the final form of the ^Vrti-
cles of Confederation and a conpar.'. 3on of the Articles with the Constitution
show a curious consistency in the use of the term "agreement",
The first elaborate draft ^f the Articles of Confedercation was submitted
to the Continental Congress on July '.2^ 1776 (3l) and was soon thereafter
printed. It contained the fol].owin ■:
('<5l) Jo-aTno.ls of the Contf-vntal Congress, vol. Y, pp, 547, 549 ,550,55c
9o61
-16-
"iiXt, IV, No Colony or Colonies, without the Consent
Ox the United States asfieDblod, chall send any Eratassy
to or receive any Enhassy fron, or enter into any Treaty,
Convention or Conference v;ith the Kin.rj or Kingdom of
Great-Britain, or any foreign Prince or Stote;
"iiTt. V. No tv:o or nore Colonies shall enter into any
Treaty, Confederation or Alliance whatever betvreen then,
without the previous and free Consent rnd Allowance of
the United States assembled, specifying accurately the
Purposes for which the same is to "be entered into, f>nd
how lon^^ it shall continue,
"Art. XV. '//hen the Boundaries of any Colony shall
"be ascertained- "by Agreement, or in the Manner here-
inafter directed, all the other Colonies shall guarantee
to such Colony the full and peaceable Possession of, and
the free and entire Jurisdiction in rnd over the terri-
tory included within such Poand.aries.
"Art. XVI !!• 'The United States assembled shall have the
sole and exclusive Right and Power of ••• Sending and
Receiving Ambo-ssadors under ojiy Character - Entering
into Treaties ?nd Alliances - Settling £,11 Disputes
oJid Differences now subsisting, or tha.t hereafter nay
arise between two or more Colonies concerning Boimdaries,
Jurisdictions, or any other Cause whatever. — — The
United States assembled sha.ll never engage the United
Colonies in vJar, — - nor enter into Treaties or Al-
liances • .. unless the Delega.tes of nine Colonies
freely a^ssent to the sa.ne..."
The second printed draft v/as considered oy the Continental Congress on
August 20,1776, (32) and contained the following provisions:
Article IV. No State, v/ithout the consent of the
United States in Congress Assembled, shall send any
Em.bassy to or receive ajiy enbo.ssy from, or enter
into any conference, agreement, aJliance, or treaty
v/ith any King, Prince or State; •••
"Article V. No tv.^o or more States shall enter into
any treaty, confederation or alliance wha.tever be-
tween them, without the Consent of the United States
in Congress Assembled, specifying accurately the pur-
poses for which the same is to be entered into and
how long it shall continue,
"Ai-ticle XIV, The United States Assembled shall have
the sole and exclusive right 8n.d power of ,,, sending
and receiving Aiabassadors - entering into treaties
(32) Jom-nals of the Continental Congress, Vol. V, vp. 675,676,681
9351
-1 7-
and Alliarxces - deciding all disputes and differences now sutsistin/;;,
cr thr.t herepftev may nise "between two or nore States concernin/j
"boundaries, jiirisdicticns, or any other ca.u.se whatever - , . . Tlie
United States in Congress assen'bled shall never engage in a war, • . •
nor enter into treaties or alliances except for peace ... "unless
yiine States as;:ont to the same;"
irticle XV of the first printed draft ';.'as omitted in the second printed
draft, Su"bsequently r.nd on November 15, 1777, the Continental Congress con-
sidered 0. report which differed slightly from the final form of the Articles
of Confederation rnd then Adopted the Articles in their final form, (o")
The right to enter into "agreements" was limited only as ""between a State
and a foreign power, consent of Congress being required (Article IV of the sec-
ond printed draft, Article VI of the final form, Article IV of the first print-
ed draft v;here the word "convention" is used instead of "agreement".) In no
draft was the word "?.greement" used v/hen limitations v/ere im;oosed on the right
of the colonies of the states to malce arrangements among themselves (Article
IV of first printed draft, Article V of second. Article VI of final form); in
other words, "agreements" of the colonics or states among themselves were per-
mitted v/ithout any limitation whatev-r. The fact that the draftsmen of the
Articles of Confederation while wor'iing on three different drafts in the ;oer-
iod of one and one-half years cent -. tently rave the States a limited right to
enter into agreements v/ith foreign "^owers, aaid gave them an unlimited right to
enter into a^'reements among thGnse"'.ves and the fujrther fact that ten 3^ears
later, in the Constitution, the rights of the States to enter into agreements
among themselves became limited. sho\' that thu men of those times used "agree-
ment" as if the word had a distinct "nd clear meaning for them and not merely
as a catch-all term to supplement otx^cn.c
Aoa„rt from t"he Articles >f Confederation and the drafts that preceded the
let us consider the federal convention of 1787. In that assembly \7ere majiy
good, Dud. some excellent, lavr/ers. They weighed words with the utmost care
for v.'eel:s i^nd. months. The language which forba.de treaties but oerraitted agree-
ments or compacts \ ith concent of Congress was before those lawyers for si::
weeks, from August 6 till Sei-)teraber 17. Though to us the language suggests nc
distinction at all, they a^'oproved it without rixiy question.
The only reasonable explanation of this phenomenon is that the words
"agreements or comracts" in contrast to "treaties" were used as technical
terms t?^:en from the field of international dealings, that they were v/ords
of art, carried a. definite meaning r.nd. therefore called for no discussion.
To ascertain that meaning one mist obviously turn to the literature on
international law in existence in 17j7 and knov/n in this country at tha.t time.
Somev/here axiong the classifications of treaties and interna^tional agreements
there may be a classification that \iill fit the distinction underlying the
constitutional provisions in qioestion. Many writers whose v;orks were in
existence at that time appear not to have discussed classifications of inter-
nationa.1 agreements and treaties, or if they did, those classifications can
(3o) Journals of the Continental Congress, Vol, IX, "o-o. 907-925,
9361
"by no stretch of the inagination "be used to e:?:)lr.ln the difference "betvreen
"treo.ties" and "agreements or compacts". The;^^ are: Giovanni da Legnano, (34)
Balthazar lyala, (35) Alberico Gentili, (36) Hichard Zouche , (37) Samuel
Pufendorf, (38) Samuel Rachel, (39) Johann Wolfgang Textor, (40) Cornelius
Van Bynkershoek (4l) and J. J. Burlamaqui (42) Hugo Grotius (43) distinguished
federa, treaties, from -cacti ones a.licae. other agreements* Though the terms
remind lis of the language used in the constitutional orovision the definition
given "by Grotius could not possibly "be relied on by the framers of the consti-
tution because of the remoteness of the subject matter embraced in the defini-
tions. His follower and c?iinotator Jean Barbeyrac (44) did not change the de-
finitions.
Christian L. P>. de liVolff (45) distinguished between "federa" and "paction
es" end. defined them in a way that appears relevant to the constitutional
provision but there seems to be no proof that Wolff's work was knovm in this
country in 1787,
Another author was Smeric de Vattel. (46) The circumstances under
which his work became known in this country are recited by Albert de Lapra.dei:
in his introduction to the edition of Vattel' s v/ork published by the Carnegie
Sndov/ment for International Peace, at page XXIX:
"...From 1758 to 1776 Grotius, Fufendorf, and Burlamaqui were read, stud-
ied, and commented upon in the English colonies of Anerica, but Vattel, at thr
time, seems to have been unknown to them.
(34
(35
(36
(37
(38
(39
(40
(41
(42
(43
(44
(45
(46
Tractatus De Bello Be He-oresaliis et de Duello, 1360, published by Car-
negie Endovment for Interna.tional Peace, 1917.
De Jure et Officiis Bellicis et Disciplina I.Iilitari, 1581, edition of
Carnegie Endowm.ent, 1917.
De iure belli, 1598, edition of Carnegie Endowment, 1933.
luris et ludicii Fecialis, sive , lui^i?. inter Gentes, et Quaestionum de
Eodem Explicatio , 1650', edition of Carnegie Institution, 1911.
De Jure Naturae et Gentium, 1672, edition of Carnegie Endowment, 1934.
De Jure Naturae et Gentium Dissertationes , 1676, edition of Carnegie
Endo\7m.ent, 1916.
Synopsis Juris Gentium, 1680, edition of Carnegie Endowment, 1916,
Ouaestionum juris publici libri duo, 1737, edition of Carnegie Endov/ment
1930.
Principes du droit de la nature et des gens et du droit public general,
1737.
De Jure Belli et Pacis, 1625, ed. of Carnegie Endowment, 1925, book II,
chs. XV, XX, XXI, (X,XI).
Le Droit de la Guerre et de la Paix par H-oges Grotius, Amsterdam, 1724,
Vol. 1, p. 474.
Jus Gentium, methodo scientifica pertractatum, 1749, ed. of Carnegie
EndovTment, 1934, ch. IV, sec. 369.
Le Droit des Gens ou principes de la loi naturelle, 1758, ed. of Ca.rnegi
Endowment, 1916.
9361
-].9-
In 1773 the Law of Na.tions vc taught at Kiric^s College (now
Colir.ibia Universit^O* In 1774 Adams, and in 1775 Hamilton, quote
ov -oraise Grotius, Pmendorf, Locke; neither .nentions Vattel, But
the I7ar of Independence gave the United Coloni-s the ne-:; name of
States. A hard task enga/^ed the Ainarican iDeonle, ^.-^ho , "by the study
of the Law of Nature and of Nations, ?;ere pre-oaring themselves for
the -.reat v-ork of independence. Anxious to "build upon solid foujida-
tic:\s, their statesmen trirned to European publicists, Charles r» 17,
Hrj-.ias, a Swiss living in Holland, and an ardent reriu'blican, re-
read Vp.ttel i-dth the United States in mind, brought out a new edi-
tion v:ith notes inspired by recent events, and sent three copies of
it to iTranlrlin. "
?"iie letter by Benjamin ?ranl:lin to Dumas ackno-dedging receipt of
those copies rei^d as follows: (47)
"PhiladelT^hia, December 19, 1775.
"Dear Sir:
...I £r:i much obliged by the k^nd present you have made us of your
edition of Vattel, It came to us in good season, when the ciro.unstances
of a L'ising State make it necessary frequently to consult the law of
nations. Accordingly, tha,t copy '-^hich I kept (after depositing one in
our own loublic library here, and sending the other to the College of
Llassachusetts Bay, as you directed) ha,s been continually in the hr.nds
of the members of our Congress novr sitting, who are much pleased with
your notes and preface, and have entertained a high and Just esteem for
their author. . . "
T/ith reference to the copy given to the libra,ry the following is of in-
terest:
"...This copy (presented by Dvmas to the Philadelphia library'-)
imdoubtedJLy was used by the mev.bers of the Second Continental Congress,
which sat in Philadelphia; by the leading men who directed the policy
of the United Colonies -ontil the end of the war; and later ^j the men
■'^ho sat in the Convention of 1787 and drew uo the Constitution of the
United States, for the library was located in Ca]:*penter' s Hall, where
the Pirst Congress deliberated, and within a stone's throw of the
Colonial State House of Pennsylvania, where the Second Congress met,
pjid likewise near where the Constitution was framed." (48)
James V/ilson, a m3mber of the Committee on Detail, v;as familiar ^dth
Vattel, He was the author of the draft of the Constitution in which the
■ohrase "agreements and compacts" appears for the first time though in the
hand'. -ri ting of Rutledge, cha-irmen of the Committee, In the Pennsjrlvania
Convention called to ratify the Federal Constitution, on December 4, 1787,
(49) Uilson referred to "All the political ^vriters from G-rotius euC. Piuendorf
down to Vattel". he had to be well versed in international law. "In 177S
he was commissioned advocate-general for France and in this capacity he
represented Louis XVI in all claims arising out of the French alliance until
(47) Wharton: United States Revolutionary Diplomatic Correspondence, 1889,
V. 2, p. 64.
(48) Introduction to Vattel* s book, ed. of Carnegie Endowment, vol. III,
P,X;a, note 1
(49) Elliott^s Debates on the Fede al Constitution, vol, 2, p. 454.
9361
-20-
the close of the v/ar. " (50) The chairman of the Committee, John Rutledge, line
studied lav; in England, was a delegate from South Carolina to the Continental
Congress for three years, v/as Chief Justice of the highest court of South
Carolina, 1791-1795, and in the latter year served as Chief Justice of the
Supreme Court of the United States during one term. (51) Oliver Ellsv/orth,
another meralDer of the Committee, had been a delegate to the Continental
Congress from Connecticut for six years, a judge of the Supreme Court of Erroi
of Connecticut, and in 1796 was appointed Chief Justice of the Supreme Court
of the United States. (52) In all likelihood those men were foiniliar with
Vattel»s work in 1787.
Vattel was referred to in the debates of the South Carolina convention
called to ratify the federal Constitution, (53)
Book II, Chapter XII of Vattel' s v/ork contains the following:
"Sec, 152, Treaties of Alliance and other public treaties. ■ •
A treaty, in Latin foedus, is a pact entered into by sovereigns
for the welfare of the State, either in perpetuity or for a con-
siderable length of time,
"Sec, 153, "Compacts, agreements or conventions. Pacts which have for
their object matters of temporary interest are called agreements,
conventions, compacts. They are fulfilled by a single act ajnd
not by a continuous performance of acts, TJhen the act in question
is performed these pa.cts are executed once for all; whereas
treaties are e?:ecutory in character and the acts called for must
continue as long as the treaty exists,
"Sec, 192a Treaties executed by an act done once for all. Treaties
which do not call for continuous acts, but are fulfilled by a
single act, and are thus executed once for all, those treaties,
unless indeed we prefer to give them another name, (See Sec, loo),
those conventions, those pa.cts v;hich are executed by an act done
once for all and not by successive acts, are, when once carried
out, fully and definitely consummated. If valid, they naturally
bring about a permanent and irrevocable state of things, •,," (54)
The original French text is a.s follovfs:
"§ 152. Des Trait^s d'Alliance cS: autres Traites Publics, .,,
Un Trait^, en Latin Poedus, est un Facte fait en vue du
bien public, par les Puissances superieures, soit a perpetuite, soit
pour "^n temps considerable.
(50) The Encyclopedia Britannica, 1929, vol. 23, p, 631,
(51) Dictionary of American Biography, 1935, v. 16, pp. 258-259,
(52) Dictionary- of American Biography, 1931, v, 6, pp, 112-114,
(53) Elliott's Debates on Pederal Convention, vol. IV, p, 277-8, 310,
(54) The translation is that accom.panying the edition of the Carnegie Endow-
ment for International Peace except that the vford "pacte" I translate
as "pact", "paction" a.s "compact", whereas in that translation "pa.cte"
is "compact", "paction" is "arrangement". My translation is equally
correct and it brings out more clearly the relationship between
Vattel' s ideas and the language of the constitutional provisions,
9361
-21-
"§ 153, Les pactions, accords, ou conventions, Les Pactes qui ont pour
objet des affaires transitoires, s'appellent Accords, Conven-
tions, Pactions, Ills S'acconplissent par un acte unique, & non point
par des prestations reiterees, Ces Pacts se consomment, dans leur
execution, une fois pour toutes; Les Trait^s recoivent une execution
succesGivG, dont la duree 6gale cello du Trait^,
"§ 192, Des Traites accoraplis une fois pour toutes & Consommes. Les
Traites qui ne conceri.ont point des prestations r^iterles, mais
des actes transitoires, uniques & qui se consomment tout d'un coup, ces
Trait^s» si toutefois on n^air.e mieux les appellor d'un autre non (vo^'-ez
le § 153): ces Conventions, ces Prctes, qui s'accomplissent une fois pour
toutes, & non par des actes successifs; des quHls one recu leur
execution, sont des choses consounees & finies, S'ils sone vaJides, ils
ont de leur nature un effet per^^etuel et irrevocalDle; .,,"
It is my contention that bhe "agreement or compact" mentioned in the
Constitution is the "agreement, convention, compact" descri"bed in sees, 153
and 192 of Vattel, his "accorr, convention, paction."
TTha.t V7ere the hinds of trec.ties that loomed large in the minds of the
framers? There r/ere treaties of peace, of nmity and commerce, consular con-
ventions, treaties of navigation. Under th:^ Articles of Confederation such
treaties had "been negotiated, (55) It riB.s not vzise to leave the door open
for States to enter into that kind of treaties. But there were other matters
with v,^liich not only the framers were familiar "but even the man on the street,
and they were "boundrr;/ disputes. The colonies and the Ctates were continua.lly
engaged in such disputes. Colonies tried to settle many by agreements, so
did Sta.tes, (56) Such agreements nec3ssarily involved frequent cession of
strips of land on one side or the other of the agreed "boundary line.
Obviously a. way had to be left open for the States to settle such dis-
putes by agreements either among themselves or with a neighboring foreign
nation and the franers wanted to permit such agreements with consent of
Congress, Enumeration of kinds of treaties forbidden or permitted carries
the danger tha.t some other kind of trea.ty may develop for which there will be
no provision. The framers therefore preferred to use generic terms to in-
clude the treaties they had in mini nnd similar ones. They had before them
the bible of international law, the oooks of a recognized authority, Vattel,
and he described a category of interna''' ional arrangements, called "accord,
convention, paction", which were fulfilled by a single act and not by a con-
tinuous performance of acts; when the act in question was performed, such
agreements were executed once fcr all (sec, 153), if valid they brought about
a permanent and irrevocable stnte of thiygs (sec, 192), Tha-t category clearly
(55) C:i£..rles Kenry Butler: Tr^- ity Making Power of the United States (1902),
Vol, 1, sees, 158-150; Grindall: "Treaties, Their Making and Enforce-
ment" (1916) sec. 17.
(56) The intercolonial agreements enumerated by Pranlcfurter and Landis in The
Compact Clause of the Constitution, 34 Yale Law Journal 685 (1925) at
pp. 730-732 involved fixing of boundary lines; so did three out of the
four interstate -agreements under the Articles of Confederation there
enumerated, pp, 7:..2-734, the fourth regulated largely matters that arose
in connection with the boundary,
9361
descrilDed ooiiiicar:' settD.enentn includln.^; cessions or excharif'^cs of land
connected nitli such settlements, and. so tlic- frar.iers used the words "agree-
ment or compact". 'Tlie other treaties, of peace, commerce, etc. they simply
called "treaty" j'cist as Vattel did in sec. 152. Conseouently they prohilDited
a State from malting a treaty "but pennitted m^Ucin^- an agreement or compact
with consent of Congress.
Of great corrooorative value is the fact that one of the earliest
systematic coniientators on the Constitution after its ratification, St. George
Tucker, who wa,s r. contemporary" of the men who drafted the Constitution, ex-
pressly referred to "Vattel, 296, 297" when discussing "treaties" as
distinguished from "agreements or compacts". (57)
When the first printed draft of the Articles of Confederation uses
the word "convention" (Art. IV) and the second printed draft (Art. IV) and
the final for;n (Art, VI) use the word "agreement", the words mean the same
thing, heing talcen from Vattel 's trio, "accord, convention, paction." When
the first draft (Art. IV) refers to the mutual ascertaining of ooimdaries
among colonies the v/ord used is "Agreement."
No State a;opears to have asked Congress for its consent to an agreement
or compact with a foreign power and Congress never gave such consent. There
have teen cases holding void agreements "by a State, without consent of
Congress, to extradite a single fugitive from justice. (57a) They do not
imply that vdth consent of Congress such agreements would he valid. There
has "been no judicial determination upholding such an agreement or compact.
'Therefore there is no authoritative -pronouncement as to v;hat specific subject-
matter may "be agreed upon hetweon a State a,nd a foreign power with consent of
Congress. In the ahsence of such an author it a-tive pronouncement sees, 153 ano
192 of Vattel 's "book should he the guide in interpreting the clause "compact
or agreement. , .with a foreign -oowcr. "
The question might he raised why matters which "oring about a permanent
and irrevocable state of things" (Vattel, book II, Sec, 192) are called
"affaires transitoires", transitory matters, (sec. 153) When this word is
taken literall;" it certainly does not fit the category. What is permanent is
not transitor;;'". Story (58) took the word literally and therefore rejected thf
(57) St. George 'Tucker: Blackstone's Commentaries with Notes of Reference
to the Constitution and Laws of the federal Government of the United
States and of the Commonwealth of Virginia (1803), vol. 1, Appendix
p. 309. Pages "295, 297" in the English translation of Vattel 's book
published in I/ablin in 1792 contain sees. 152~156.
(57a) Holmes v. Jennison, 14 Pet. 540, 10 L. Ed. 579 (lS40); People v.
Curtis, 55 II. Y, 321 (1872). In the Holmes case Tsjiej Ch.J. quoted
a few sections from Vattel including sees, 152-153 preceded by the
following remarks: "A few extracts from an eminent v;riter on the
laws of nations, showing the m.anner in which these different words
(treaty, agreement, compact) have been used, and the different
meanings sometimes attaclied to them, ?/ill, perhaps, contribute
to explaiii the reason for using them all in the Constitution. "
(58) Story: Gomentaries on the Constitution of the United States, 4th
ed. 1373, written about 1S33, sec. 1402.
9361
-23-
explanation advanced Id-'- St, George Tucker, gupra. that "af^reement or conroact"
refers to tra-^sitor-'- r^ffairs. Story asked:
"FxX" na:^ not a compact or agreement "between States
oe -ooroetuo,!? If it mr^y not, what shall "be its
duration? Arc not treatier, often made for short
periods, and upon questions of local interest, and
for tenporar;;' ohjects?"
The truth is that t'le agreements descrihed 127 Vattel in sec. 153 are not
transitory'- at all in the usual sense of the word, and to the extent that the
categor^'- hecaiie estahlished in international law, the permanence of the
effects of such agreements is stressed.
Wheat on states: (59)
"Kinds of International Treaties. General compacts "between nations
may he divided into what are cMed transitory (dispositive or executed)
conventions, and treaties -oro--^^^. ^rl"'' so termed (sometimes called executory
conventions). The first are pe].^' jtual in their nature, so that, heing
once carried into effect, they su'jsist independent of any change in the
sovereignty end form of govornnc -^t of the contracting parties; and
although their operation m y, i?. some cases "be suspended during war,
they revive on the returr of •':)0l co ■.rlthout any e:qoress stipulation. Such
are treaties of cession, "boundary, or exchange of territory'-, or perhaps
those which create a permanent servitude in favor of one nation within
the territory'- of another. ( Vattel, Droit de Gens, liv. II, ch. 12, s.
192; Martens, Precis, liv, II, ch. 2, s. 58) The second class includes
treaties relating to friendship and alliance, commerce and navigation,
social a'ld econ^r.iic issues, extradition, guarantee etc."
A str.tenent "oy Strupp is to the caxie effect: (50)
"Haufig i;;,t, namentlich in ier alteren Literatur, die
Unterscheidung in traites und pcctes oder conventions
(de Vattel, Droit des gens, II, chep. 12 § 152, 153, 192;
Ch. de I.Iartens, Guide diplomatinue II, 1, S. 127); Wh'eaton,
Internationo-l Law III, cap. II. Ahnlich in neuerer Zeit
Eartmann, Institutionen des praJ:tischen Volkerrechts, S,
141 f.u.a. ), Erstere sollen eine dauernde Tatigkeit zur
IT
Folge hahen, wahrend let zt ere dTjijrch einen einmaligan Akt
erfullt werden. , . , "
(59) Wheaton«s Elements of Interna :ional Law (6th Ed., 1928) Vol. 1, p. 504
(60) Strupp: 17(yrter"buch des Volker^ech'-.es imd der Diplomat ie (1925) vol.
2, p. 651. Translation: Erequcnt is, especially in the older litera-
ture, the division into treaties and pacts or conventions (citation).
The former are supposed to resu' t in a continuous performance of acts
while the latter are fulfilled cy a single act, . , .
9361
-24-
How then did it cone aliout that Vcttol ur;ed t}<o word "trancitor:;/"?
Vat t el concidered it his tr-sh to popularise and eiq^o-mid the teachings of
Wolff. (61) i^irionc the uayc "iJolff clascified treaties was the following: (52)
"§ 369. Toedera quid sint; o^uid yjactiones:
?oedus dicitur oactiJin 8. sumrais lootestatilDUs "boni puhlic
causa in peroetuuin, vel longius salteri ternpus inter se initum.
Pacta vero, quae praestationes transitorias, seu non iterandas
continent, Ppctioniim nomon retinent. *
.m. gr. Si duae Crentes de ai^rriliis in "bello sihi invicen
praestandis conveniunt; pactui.i hoc dicitr.r foedus; ast si gens
una alteri permit tit, ut oh annonae caritaten fruriientura in
regione svjx coenat, pactio erit. Istiusnodi quo que pac^io sunt
induciae r.iortuorum sepeliundor'jja causa post praeliur.i factae."
Translation: (63)
"i 359. ITnat treaties are; what coLToacts are. A treaty is
defined as a stipulation entered into reciprocally
Id;'" supreme powers for the -puhlic good, to last for ever or at
least for a considerahle time. But stipulations, which contain
temporar;" promises or those not to he repeated, retain the
name of com'oacts.
For example, if two nations reciprocally agree to furnish
troops to each other in time of war, this stipulation is called
a treaty; hat if one nation permits a.nother, on acco-unt of the
high price of grain, to purchase in its territor^.T", this will be
a compact, A compact of that sort, also, is the truce made
after a hattle for the puroose of hur;/ing the dead,"
The exam-oles given hy 'Jolff certainly just if;/ his characterizing the
suh.jects of a coixoact as transitory; hurying the dead after a hattle, pur-
chasing grain hecause of temporary'' scarcity", are activities of a passing
character. "Tolff also descrihes them as "non iterandas", that is, such as
need not he repeated. This latter characterization may refer to the same
two examples, or it may refer to a different category, to-wit: to a category
of promises that are f-'olfilled hy a single act like cession of territory.
(61) See introduction oy Alhert de Lapradelle to the edition of Vattel's
hook hy Carnegie Endowment for International Peace of 1916,
(62) Christian L.I3, de TJolff: Jus G-entium, methodo scientifica loertracta-
tum, 1749, ch. IV, sec. 569.
(63) Accom."oanies edition of Wolff's Jus C-entiiim ''oj Carnegie Endowment,
1934.'
9361
-JD-
firing a bomicLar;" line, aiic". ti.erefore need not "be repeo.ted. Vattel uned
the word "tra:isii:or2-" "out Oiiitted the e::anples whicii explained it. At
the same time he developed the "non-iterandas" part of the definition "by
specifyin/^ that the agreements he disc^.issed nere performed 'b^'' s* single
act, once for all. It- is not important r/hebher he correctly or incorrect-
ly interpreted Uolff.. "That is important is that to the framers of the
Constit\ition and to the lavT^^ers of those times the category of interna-
tional agreements called hy Vattel "accord, convention, paction" was
clearly enough desci.'ihed, it fitted a ]:ind of agreement into which they
desired the States to iDe in position to enter, with consent of Congress,
and the;"- conseq-aontly used that teclmical tern withoiit a-n^r opposition
from anyho'Jy.
We may nor; consider agreements or compacts "between a state and a
foreign nation reg-ulating lahor conditions in the light of Vattel 's
description of an "agreement, convention, compact". Is an agreement or
compact regulating lahor conditions fulfilled l)y a single act or does it
call for a continuous performance of acts? (Vattel, sec, 153), The
answer is clear. Such an agreement or compa.ct calls for a. very compli-
cated course of conduct and for a . .Ititude of acts which must he
continuously performed. Does such a:: agreement or compact hring ahout a
permanent a.nd irrevocahle state of thi-'.gs (Vattel, sec, 192; TJheaton,
p, 28 of this paper) with the result Jor instance, that such a state of
things will s-.irvive a war? Ohvioiisl: not.
Agreements or compr.cts regulatirg ^ahor conditions do not faJl
within the group of "agreements, conventions, compacts" descrihed "by
Vattel and therefore do not f'll within the group of "agreements or com-
pacts" which a State may ente-- into with consent of Congress.
9361
-26-
CHAPER III.
EkS THE J^EDERIL GOVEENlffiMT POWSE TO ENT3II INTO TREATIES
WITH 2'0:iIGN IIATIONS REGULATING LABOR COl^DITIONS DT BUSIl^SSES
THE REGULATION OF iTHICK HAS ESEN RESERVED TO TIiE STATES?
T7e live -under a dual system of governniGnt. So-ie powers have "been dele-
gated to the federal ^^^overnment "b^^ the Constitution of 1787 --ith the result
thr.t others remain with the States or with the people. This theory of govern
nent "as nade perfectly clear hy the lOth amendment ^oro^iosed hy Congress in
178S '■liC ratified in 1791; "The powers not delegated to the United States hy
the Constitution, nor prohioited by it to the States, are reserved to the
States res-oectively, or to the peoijle,"
The po'-er "to make treaties" rras dele^'ated to the United States, "He
(the president) shall have Power, hy and ^dth the Advice and Consent of the
Senate, to nake treaties, provided t-ro thirds of the Senators present concur;
(Constitution, Art. II, sec. 2), In addition, that power was prohibited to
the States. "No State shall enter into any Trerty, Alliance, or Confedera-
tion;" (Constitution, Art, I, sec. lO). Hence, the po-^er to make treaties
was not reserved to the States.
But this does not answer the qaestion, raised from time to time, as to
whether there are not linitations on the treaty power of the federal govern-
ment due to the reservation of certain oth?r powers in the States. TJlien a
State passes a law as to a subject matter concededly within its jurisdiction
and the federal government enters into a treaty with reference to the sane
subject matter to take effect in that very State and there is a conflict be-
tween the State law and the treaty, which shall prevail? The Constitution
provides (Art, Yl). "This Constitution, and the Laws of the United States
which shs,ll be made in Pursuance thereof, and all Treaties made, or which
shE.ll be made, under the Authority of the United States, shall be the supreme
Law of the Lend; and the Judges in every State shall be bound thereby, any
Tning in the Constitution or Laws of any State to the Co"ntrary no twi ths tand-
This lan;gua.ge would indicate that in ca^.e of conflict the treaty is
supreme, But then the further argument is raised that a trent^y is supreme
only if made "under the authority of the United States," that this iDhrase
refers to authority exercised in accordc?nce with the Constitution, that imde]
the Constitution certain matters are reserved to the States, that a treaty
v?hich attempts to regulate such matters is not made in accordance v/ith the
Constitution and therefore is not made "under the authority of the United
States"; hence, that it is not "the supreme law of the land", and the State
law does not yield to the treaty.
This 'oroblera has come before the Supreme Court of the United States in
many cases and of course its holdings are the only authoritative answer. It
may not be amiss, however, to touch for a moment on the general situation in
1787 and the expressed intentions of the framers of the Constitution,
Under the Articles of Confederation, Art. IX, supra, (64) the United
States had:
(64) page 15.
9361
-27-
", , . trie sole and ezcl^asive ri ,ht r.nd po' er of entering, into treatieg
and alliances, orovidei that no treaty of coiiir:»erce ahall oe raade ^hereljy
tl-^ le^sl.-utive powor of the res^>ective St£i.teG shall "be restrained from
iuDosinf such iaoostc arid duties on forei iiers, as their o^n oeople are
subjected to, or frori prohibiting the eroortation or importation of say
s">ecies of -^oods or comr.odities whatsoever,"
mhere tras no -:» revision concerning tre-tiss oein^ the supreme la-' of the
land, Whether or not the^r -7ore, -7as a subject of debate. Sorae States -os.ssec
la- s to the effect that certain treaties -ere the surore.ae la^^r of the land or
else passed la-'^s givin.^- effect to the treaties. Others clained the rigjit to
inter-oret treaties and passed statutes in dero.^ation of treaties or left sxici:
sti.tutes ijjireperled. Tnile the treatv of ^oeace -Tith Great Britain of 1783
called for no confiscation of property of British citizens bXi± also for no
inroediuents in their collection of debts, several States disre^^arded those
provisions, (65) Because of that failure to co Toly -"ith the treaty, said ti
British, they -rere justified in not vacating- certain forts on the frontier.
Thus it ns,3 difficult to ne-^-o tiate treaties ^th other ns.tions ^laen it appear
ed that the United States C-r;vemiaent had no por'er to enforce its treaties in
the United States.
In tliS initial st3,5es of the debates in tl^ federal convention th3,t
problem 'jas tied up with the g:eneral prooleii of enforcin-^- federal statutes
T'hich rere in conflict with State str.tutes. Tl'ie so-called Virginia plan as
adopted oy the Clonriittee of the Whole on May Zl and June 3, 1757 (56) coia-
tained the following:
'*, , .BZSCLVZD, that the Rational Legislature ou?:ht to be inpowered to
enjoy the Legislative ?J.ghts vested in Congress t-f the Confederation &
Lioreover to legislate in all cases to Tihich separate States are incorw
petent, or in "hich the hr.rjiony of the Tjiited. States nay be intemxoted
03^ the exercise of individual legislation; to negative all la-s passed
'c^ the several States, contravening in the opinion. of the national Legis-
lature the articles of the Uiion or any Treaties subsisting under the
authority of the union, ,,^
In behalf of the soaller States Patterson of Hev .Jersey s-ubciitted the
folloTiin? as a part of tl^e so— called Hezr Jersey plan: (67)
"2ES0L7ED that all Acts of the United States in Congress made by virttLc
and in pursuance of the powers hereby and 'c-j the articles of confedera-
tion vested in then, and all Treaties inade and ratified under the author-
ity of the United States shall be the rjpreme la^r of the respective
States so far forth as those Acts or Treaties shall relate to the sadd
States or their Citizens, and that the o'jAiciary of the several States
shall be bound thereby in their decisions, any thing in the respective
la—s of the Individual States to the contrary notT-ithstanding; and that
if any State, or any body of 2*en in gjcy State shall oppose or jj^svent ye,
carrying into e::scution such acts or treaties, the federal Z^scj-tive
shall he aruthorized to call forth ye 'x>^er of the Confederated States,
or so izuch thereof as siay be necessary to enforce and coiroel an o'oec.ler,ce
~z such Acts, or an Observance of s^ich Treaties, f'
(65; lare v, Hyltcn, 3 Ball. 243, 1 L,Zd. 563 (1796)
(66) Ilaz Zarrand: Records of the Federal 'Convention, Tel, I, xyo, 47, 165
(67) Jarrand, op.cit. Vol I, p, 345
9561
-28-
A--)parently the followers of "both plans recognized that State la"'s had to
yield to treaties and this '7as, by implication, the intent of a plan suhraitted
by Hanilton. (63-)
In the Coinnittee of Detail (July 26 - August 6, 1787) there seems to liave
been an intention to enumerate the kinds of treaties the draftsmen had in mind.
Randolph wrote in a draft: (69)
"The powers destined for the senate (70>) peculiarly, --^re
(1) to make treaties of commerce
(2) to make neace." (Changed in the handwriting of Rutledge to read)
"to make Treaties of peace and Alliance",
Wilson wrote: (7l)
"Hie Senate of the United States shall have power to make Treaties of
Peace, of Alliance, and of Commerce..."
ApiDarently those efforts were abandoned and the lan,gaage used in the ultimate
form gives the federal government power "to make treaties". The word "treaties'
was here used in the nost comprehensive sense, not in the sense of treaties
proper as distinguished from agreements or compacts, (See preceding chapter).
Vattel also used the v'ord "traite" in the most comprehensive sense a,s including
all international agreements (sec. 192) and more narrowly as treaties proper
(sec. 152). (72-)
At no time did the rema.rks of the members of the federal convention indi-
cate that they thought the treaty power was subject to powers reserved to the
States, On the contrary, quite a few remarks indicated the opposite. For
instance, on August 15, 1787, Col, Mason seconded a motion, which limited to the
House of Representatives the right to initiate bills for raising and appropriat-
ing v.ioney and to fix salaries of government officials, (73) "Col, Mason 2ds
the motion. He was extremely earnest to take this power from the Senate, who
he said could already sell the whole country by means of Treaties,^" On August
23, 1787 Wilson spoke in support of an amendment to the clause: "The Senate of
the United States shall have power to make treaties" and said; (74) "Under
the clause, without the amendment, the Senate alone can ma.ke a Treaty, requir-
ing all the Rice of S. Carolina to be sent to some one particular port". The
amendment was to add the proviso "but no Treaty shall be binding on the United
States which is not ratified by law" but the amendment was voted down,
(6-8) Farra^id, Vol. I, pp. 291-293
(69) Farrand, Vol, I, p. 144
(70) At that time the prevailing view was that the treaty-making power was to
be given to the Senate, Hamilton urged that the power be shared by the
Senate and the supreme Executive Authority
(71) Far rand, Vol, I, p, 155
(72) page 24, supra
(73) Farrand, Vol. II, p, 297
(74) Farrand, Vol. II, p. 393
9361
In the Virginia convention held to ratify the Constitution Mason Said:
(75) "Will any gentleman say that they may not make a Treaty, where oy the
subjects of France, England and other po'vers, may "buy ^7hat lands they please
in this country?" (76) Some feared dismemhering of the Union "by virtue of the
treaty pov/er hut Madison assured them that the poi7er did not extend so far»
(77)
I7ith this "brief reference to the proceedings of the various conventions
as a oackground (78) let us consider the decisions of the Supreme Court group-
ed according to the subject matter of the State rights involved,
A. Confiscation of eneny property. In 1774 Virginia, then engaged in
the Revolutionary War v^ith Great Britain, confiscated dehts due to British
creditors. The treaty of peace of 1783 entered into hetueen Great Britain and
the United States provided "that the creditors of either side should meet -ith
no lawful impediment to the recovery of the full value in sterling noney, of
all bona fide debts theretofore contracted. In an action by a British creditor
against a citizen of Virginia on a pre-^^ar bond it v/as held that the trea.ty
overrode the Virginia statute and judgment for the defendant was reversed.
(79) The same was held with reference to a Maryland statute, (80) Property
of a British charitable corporation located in Vermont nas declared by the
legislature of Vermont in 1794 to have become property of the State at the
tine of the revolution because of the alienage of the corporation, and then
(in 1794) the legislature granted the pro;oerty to the to\m of New Haven. The
Supreme Court held the grant void because private titles to property nere not
affected 'by the revolution and v:ere protected by the treaty of peace of 1783
which provided: "There shall be no future confiscations made, nor any prose-
cutions commenced, e.gainst any person or persons, for or by the reason of the
part vrhich he or they may liave ts'ken in the present v;ar; and that no person
shall, on that account, suffer any future loss or dama.ge , either in his person,
liberty or property ..." (81)
(75) Elliott's Debates on the Federal Convention, Vol. Ill, p. 503
(76) The Supreme Court later held that such a treaty could be made, Chirac v.
Chirac, 2 \7heat, 259, 4 L,Ed. 234 (1817)
(77) Elliottts Debates, Vol. Ill, p. 514
(78) Apart from the source-books already mentioned by Farrand and Elliott the
materials bearing on the question discussed in this chapter have been in-
dustriously collected and thoroughly considered in several works, notably
in Charles Henry Butler: The Treaty-Making Power of the United States
(1932); Henry St, George Tucker: Limitations on the Treaty-Making Power
under the Constitution of the United States (1915); William E. Mikel; The
Extent of the Treaty-Making Power of the President and the Senate of the
United States, Univ. of Pa, Law Review and American Law Register, Vol. 57,
pp. 435, 528 (1909); Charles H. Burr: The Treaty-Making Power of the
United States and the Methods of its Enforcement as Affecting the Police
Povrers of the States, Proceedings of the American Philosophical Society,
Vol. 51, p. 271 (1912); Edward S, Corvin: National Supremacy, Treaty
Power vs. State Power (1913).
(79) Ware v. Hylton, 3 Dall, 243, 1 L.Ed, 568 (1796)
(80) Clarke v. Harwood, 3 Dall. 342, 1 L.Ed, 628 (1797)
(81) The Society for the Propagation of the Gospel in Foreign Parts v. Tovm
of New Haven, 8 Wheat. 464, 5 L.Ed. 662 (1823)
9361
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3, State Statutes of Limitations. In Hopkirk v. Bell, 3 Cranch 454, 2
L.Ed. 497 (1806) the defendant, Bell, had signed a promisory note in 1773 for
a delDt of his father, and provided therein "I am not to pay the atove till it
is convenient". The holders of the note who were su"bjects of Great Britain
conijiienced action in 1803 and the Virginia five j^ear statute of limitations uas
pleaded as a har. The treaty hetneen the United States and Great Britain
entered into in 1783 and confirmed in 1802 provided "that creditors on either
side shall meet v.dth no lar/ful impediment to the recoverjr of the full value,
in sterling money, of all "bona fide debts theretofore contracted". The Court
held "that the length of time from the giving of the note to the com:nencement
of the v/ar, in 1775, not being sufficient to bar the de^iand on the said note,
according to the said act of assembly, the treaty of peace be tureen Great Britain
and the United States, of 1783, does not admit of adding the time previous to
the uar, to any time subsequent to the treaty, in order to make a bar:"
C. Acquisition of land by aliens. Chirac v. Chirac et al., 2 Uheat 259,
4 L.Ed. 257 (1817). An Act of Maryland of 1780 orovided that French subjects
uho did not qualify themselves as citizens might purchase or hold lands, but
only "for their respective lives, or for years". It further orovided tha.t if
any Erench subject 'iho should become a citizen should die intestate, "the
natural kindred of such decedent, r/hether residing in Erance or elsev/hei.-e,
shall inherit his or her real estate, in like manner as if such decedent and
his kindred were the citizens of this state", with a proviso that whenever any
French subject should, by virtue of the act, become seized in fee of any rea.l
estate, his or her interest, "after the term of ten years be expired, shall
vest in the state, unless the person seized of the same shall, within that
time, either come and settle in, and become a citizen of this state, or
enfeoff thereof, some citizen of this or some other of the United States of
America", J. B. Chirac, a native of Erance, migrated to Maryland in 1793, and
in 1793 received a conveyance in fee of Maryland land. In 1798 he was nattiral~
ized a.nd in July 1799 died intestrite, leaving no legitimate relatives other
than the plaintiffs, who were natives and residents of Erance, The State of
Maryland conveyed the land to his natural son, J.C.E. Chirac, saving the rights
of all persons claiming by devise or descent, J,C,E, Chirac entered into
possession of the land. In M'\rch, 1809 the Ercnch heirs brought ejectment.
Chief Justice Marshall, speaking for an unanimous Court, held that since
J. B. Chirac was not a citizen rahen he acquired the land, he would ha,ve ac-
quired an estate for life only under the Maryland Act, However, a treaty be-
tween Erance and the United States, ratified in 1773, permitted the citizens
of either country to acquire land in the other without obtaining letters of
naturalization; hence, J,B. Chirac obtained title in fee in spite of the Mary-
land statute. His Erench heirs were entitled to the land under the Maryland
statute, but they had to fulfill a condition subsequent, that is, they had
either to settle in Maryland or enfeoff a citizen of the United States of the
land within ten years, that is, before July 1809. This they failed to do and
their title would have been extinguished under the Marj^-land statute for failure
to perform the condition subsequent. However, they were helped by another
treatj^ between the United States and France, negotiated after the e:qpiration
of the first, ^rhich again permitted the citizens of either country to inherit
land in the other v-ithout oeing obliged to take out letters of naturalization;
that treatjr was held to liave done away ^.dth the condition subsequent. Judg-
ment for the plaintiffs was affirmed. Thus t'-'o separate wrovisions of the law
of Marj-land, one as to aliens purchasing land in that State and the other as to
aliens inheriting land in that state were held to have been overridden by tv70
9361
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separate treaties entered into iDetween the United States and France. (82)
A Swiss citizen died in Virginia in 1851 intestate, "unTiarried, ^-ithout
children and o^.-ming real estate in Virginia. The State clairaed the land "by
escheat and obtained judgment directing sale. Then citizens of S'"^itzerland
who were heirs at law of the decedent filed a petition i-)raying that the pro-
ceeds of the sale be paid to them. They relied on a treaty "between the United
States and Switzerland, made in 1850, which -orovided in part: "in case real
estate situated within the territories of one of the contracting parties
shoiild fall to a citizen of the other party, Y/ho, on account of his "being an
alien, could not "be permitted to hold such property in the State or in the
canton in which it may "be situated, there shall "be accorded to the said heir,
or other successor, such terra as the laws of the State or canton will permit
to sell such property; he shall be at liberty at all times to ■'•athdrav/ and
export the proceeds thereof without di^ff iculty, . . " The Virginia courts dis-
missed the petition. The Supreme Court of the United States reversed on the
ground that the treaty gave the Swiss petitioners a right to sell the land and
to withdraw the proceeds and in that respect overrode the law of Virginia;
that since the law of Virginia fixed no time v/ithin which the heirs could
exercise that right they could exercise it at any time, (83)
The States follovr and recognize the law as laid doi,7n by the Supreme Court
of the United States, (84) Of course, in the absence of a treaty, a Sta.te is
free to grant or deny an alien the right to inherit land within its borders,
(85)
D, Prohibition of emi3lo .mient of foreign laborers on public works or pro-
hibition of employment of foreign laborers by State-chartered corporationso
In 1872 the State of Oregon ps.ssed a statute forbidding contractors to employ
Chinese labor "on improvement of streets and public works in this state". The
statute was held void because of a treaty between the United States and China
which gave the citizens of each country the right to become permanent residents
in the territory of the other; this - said the Court "necessarily implies the
right to live and to labor for a living". (86) The Constitution of California
and a statute passed in 1880 prohibited any corporation chartered in the State
from employing Chinese or Mongolians, directly or indirectly. The pertinent
provisions of both constitution and statute v/ere held void in view of the
(82) See also Hughes v. Edwards, 9 Wheat. 439, 6 L.Ed, 142 (1824) and Corneal
V. Banks, 10 Wheat. 178, 6 L.Ed. 297 (1825)
(83) Hauenstein v. Lynham, 100 U,S, 483, 25 L.Ed, 628 (1879)
(84) People v. Qerke, 5 Cal. 581 (1855); Wunderle v. fonderle, 144 111, 40, 33
i\T,E. 195 (1893); Opel v. Shup, 100 la. 407, 69 N.W. 550 (1896). A treaty
with Austria- Hungary made in 1848 was held to override the statutes of
New York which denied an alien enemy the right to inherit land, even
after this country had decla^red war against Austria-Hungary in 1917 in the
absence of a proclamation suspending or abrogating the treaty. Techt v,
Hughes, 229 N.Y. 222, 128 N.E. 185 (1920) per Cardozo, J., cert, den. 254
U.S. 643, 65 L.Ed. 454 (1920)
(85) Blythe v. Hinckley, 180 U.S. 333, 45 L.Ed. 557 (1900); Wunderle v. Wunder-
le, supra; Opel v, Shup, supra.
(86) Balcer v. Portland, 2 Eed. Cas. 472, Case No. 777, C.C, L. Oregon, (1879)
9361
treaty bet^Teen the United States and Cl'iina vihich permitted the citizens of
each coujitry to reside in the territory of the other, (87)
E . Limiting-?: the "business of pawn "brokerage to citizens of the United
States, An ordinance of the City of Seattle, Washington, ^vhich in effect,
limited the "business of pav/n "brokerage to citizens of the United States, was
held not to apply to a citizen of Japan "because of a treaty "between the United
States and Japan guaranteeing the citizens of either country freedom to engage
in "business in the other on the sarae terias as are enjoyed by na.tives, (87a)
P , Issuance of letters of administration on estates of alien, residents ,
Where a treaty between the United States and a foreign country gave the for-
eign consul a right to obtain letters of administration on the estates of his
countrymen dying intestate in this country such treaty was given full effect
even though the State law gave other persons the right to take out letters of
administrrtion under those cirdumstances. (88)
&• Taxation of aliens by States. A statute of Iowa imposed a 10^ inheri-
tance tax on estates uassing to relatives ^7ho were non-resident aliens, A
treaty between the United States and Denma.rk made in 1826 and renewed in 1857
secured to the citizens of each country the right to remove property acquired
by inheritance from the territory of the other without payment of any other
taxes than those paid by natives. Held, the treaty superseded the statute,
(89) Similarly a California poll tax on resident aliens imposed by statute
and constitution of California had to yield to a treaty between the United
States and Japan which provided that the citizens of either country "shall
not be compelled, under any pretext whatever, to nay any charges or taxes
other or higher than those that are or may be paid by native citizens or
subjects". (90)
H. Creation of penal law. In 1894 the Nez parcle Indians ceded a part
of their land to the United States, The agreement provided that for 25 years
thereafter the federal statutes prohibiting introduction of liquor into the
Indian country should continue in force in the ceded part. In 1905 a sec-
tion of that land had been organized into a village under the laws of Idaho
which State had full jurisdiction over the village and its inhabitants. An
Indian exchanged liquor in that village and was convicted under the federal
statute. The Court held that the village -7as not Indian country within the
contemplation of the federal statute but that it must be treated as if it
were Indian country becaur-e of the agreement betv/een the
(87) In re Tiburcio Parrott, 1 ?ed. 481, CCC. , D, Cal, (1880)
(87a) Asalaira v. City of Seattle, 265 U,S, o32, 68 L.Ed, 1041 (1923)
(88) In re Wyman, 191 Mass, 276, 77 N.E. 379 (1906); Carpigiani v. Hall,
172 Ala, 287, 55 So. 248 (1911); Infelisets Estate, 51 Mont. 18 (1915).
In Rocca V, Thompson, 223 U, S, 317, 56 L,Ed, 453 (1911) the court con-
strued a treaty not to show the intention to give the foreign consul
that right and continued: "Had it been the intention to commit the ad-
ministration of estates of citizens of one country, dying in another, ex-
clusively to the consul of the foreign nation, it would have been very
easy" to have declared that purpose in unmistakable terms. For instance,
where that was the purpose, as in the treaty with Peru in 1887 (August
31, 1887, 25 Stat, 1444), it was declared.,." There was no intimation
on the part of the Supreme Court that such a treaty would exceed the
treaty«making power of the federal government,
(89) Nielson v, Johnson, 279 U,S, 47, 73 L.Ed. 607 (1928)
(90) Ex iDarte Heikich Terui, 187 Cal. 20, 200 Pac. 954 (1921)
9351
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United States and the Indian trite. The conviction was therefore upheld^ (91)
A similar result v/as reached when the United States hrou^^ht a libel to forfeit
liquor introdiiced "by a v^hiite person into a regularly organized country in the
State of Minnesota, The United States relied on a treaty "by which the Indians
had ceded that land, with a proviso continuing in force the federal statutes
against introduction of liquor into the Indian country, A judgment sustaining
a demurrer to the information was reversed, (92) In the latter case the Court
strongl;/- relied on the corainerce cla.use too, and the commerce clause wa,s re-
ferred to in the former case. But it was admitted in "both cases that there
was no Act of Congress which justified the indictment or the information. In
other words, the prohibitions were not enacted by Congress by virtue of its
power to regulate commerce with Indian tribes. The prohibitions were created
by the treatj-'-making power alone,
I, Hegulation of fisheries on this side of the boundary'- line between the
United States and Canada is concededly a matter for reg-ilation tr-- States locat-
ed alon^^- the boundary line. And yet a treaty between the United States and
Great Britain to regulate those fisheries was held to be within the treaty-
making power, (93)
J, P.egdlation of mi^'-rator:''- birds. Congress attempted to regula.te the
killing of aiL-o^ratory birds within the St'-tes but the Act was held unconstitu-
tional in lower federal courts on the ground that it wa.s an invasion of rights
reserved to the States, the States being the owners of migratory birds, (94)
Thereafter and in 1915 the United States entered into a treaty with Great
Britain regulating the killing of migratory birds in the United States and
Canada and in pursuance of the treaty Con.;ress passed an Act in 1918, to give
effect to the treaty. The treatj'' as well as the Act were held within the
treaty-mailing power and valid, (95) Mr, Justice Holmes said in that case;
"No doubt the great body of priva.te relations usually falls within the control
of the State, but a treaty may override its power",
K, Police power. There is a considerable body of dicta, originating most-
ly in the period of about 25 years preceding the Civil War, to the effect that
the police power of the States cannot be infringed on bj- any act of the federal
government, be it Act of Congress or treaty, (95) The T)hrase "police powers"
is frequently employed as synonymous with "powers reserved to the States,"
The cases discussed so far clearly show that the treaty power is superior to
powers reserved to the States, Even where the phrase is employed to describe
measures which provide for health, morals, safety, etc,, it is very clear that
those measures being "Laws" must yield to the treaty power in accordance with
the plain language of Article VI of the Constitution. There has never been a
holding to the contrary. Mr, Justice Sutherland has well said with reference
(91) Dick V. United States, 208 U.S. 340, 52 L.Ed. 520 (1907) " '
(92) United States v. Forty-three Gallons of Ihiskey, 93 U.S. 188, 23 L.Ed,
845 (1875)
(93) 22 Op, Atty. Gen. 214 (1898)
(94) United States v. Shauver, 214 Fed. 154 (D.C., E.D, Ark. 1914); United
States V. McCullagh, 221 Fed, 288 (B.C. , D. Eans,, 1915)
(95) Missouri v, Holland, 252 U.S. 416, 54 L.Ed. 541 (1920)
(96) License Cases, 5 How, 504, 12 L.Ed. 256 (1847); Passenger Cases, 7 How.
282, 12 L.Ed, 702 (1849)
9361
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to the claim aboiit the superiority of the police p0'7ers: (97)
"The matter is, after all, quite simple, and resolves itself into the
question whether the positive provisions of Article VI of the Constitu-
tion men r^hat they seem to say? By this article treaties ma.de under
the authority of the United States are declared to "be the supreme law
of the land, 'anj^thing in the Constitution or lavrs of any state to the
contrary?- notwithstanding' . Lav7s of the United States made in pursuance
of the Constitution and treaties made under the authority of the United
States stand upon the same footin,5 of equality. The Constitution and
lav7s of the states are expressly made suhordinate to "both. No lan^age
could be more definite or final, and the conclusion is inevitahle that
a treaty, otherwise valid under the Constitution, is not rendered in-
valid because it conflicts vrith some provision of a state constituion
or state law."
The difference betrrcen police powers and legislative powers in general is
very va^ae. Virtually eYery law can be shown to relate to the welfare or
health or morals of the people. Apart from that, some of the decisions clear-
ly involve matter which ordinarily would be considered within the police power
of the States, for instance, whether or not aliens should own land or engage
in the pav/n brokerage business, or whether liquor should be dealt with in
State territory", or when iiihabitants of the State may or may not shoot migra-
tory birds. In those decisions, hov/cver, the treaty pov/er has been uniforaily
upheld.
So far the Supreme Court has alwa.ys recognized the superiority of the
treaty-mailing power of the federa-1 government over rights reserved to the
Sta,tes. In spite of the successive decisions of the Supreme Court the fol-
lowers of the so-called State-rights doctrine have insisted that the rights
reserved to the States, by virtue of the system of government or by virtue
of the 10th Amendment to the Constitution, are superior to the treatj'^-malcing
power. It seems tha.t those ar^iiments have been effectively disposed of by
the opinion O- Lr. Justice r'olmes in Missouri v. Holland (98) already re-
ferred to on lage 35 - of this paper. In that case the State of Missouri
filed a bill in equity to prevent a, gaine wa.rden of the United States from
attempting to enforce the iiigratoiy Bird Treaty Act of 1918. The Court said,
in part :
"...the question rtdsod is the general one whether the treaty and statute
are void as an interference with the rights reserved to the states. To
answer this question it is not enough to refer to the 10th Amendment, re-
serving the nowers not delegated to the United States, because by article
2, § 2, the po\7er to make treaties is delegated expressly, and by article
6, treaties made under the a-uthority of the United States, along with the
Constitution and laws of the United States, made in pursuance thereof,
are declared the supreme law of the land. If the treaty is valid, there
can be no dispute about the validity of the sta.tute under article 1, § 8,
as a necessai^'" and proper mepjis to execute the powers of the government.
The lang-LiagG of the Constitution as to the supremacy of treaties being
general, the question before us is narrowed to an inquiry into the ground
(97) George Sutherland: Constitutional Power and TJorld Affairs, (1919)
■n, 157
(98) 252 U. S. 415, 64 L. Ed. 641 (1919)
9361
-35-
upon which the present supposed exception is placed.
It is said that a treaty cannot be valid if it infringes the Consti-
tution; that there are limits, therefore, to the treaty-making power;
and that one such limit is that what an act of Congress could not do
unaided, in derogation of the powers reserved to the states, a treaty
cannot do. An earlier act of Congress that attempted by itself, and
not in pursuance of a treaty, to regulate the killing of migratory birds
within the states, had been held bad in the district court. United
States V. Shauver, 214 Fed. 154; United States v. McCullagh, 221 Fed.
288...
Whether the two cases cited were decided rightly or not, they cannot
be accepted as a test of the treaty power. Acts of Congress are the
supreme law of the land only when made in pursuance of the Constitution,
while treaties are declared to be so when made under the authority of
the United States. It is open to question whether the authority of the
United States means more than the formal acts prescribed to make the
convention. ¥e do not mean to imply that there sxe no qualifications
to the treaty-malcing po\/er; but they must be ascertained in a different
way. It is obvious that there may be matters of the sharpest exigency
for the national well-being that an act of Congress could not deal with,
but that a treaty followed by such an act could, and it is not lightly
to be assumed that, in matters requiring national action, 'a power which
must belong to and somev/here reside in everj civilized government' is
not to be found. Andrews v. Andrews, 188 U. S. 14, 33, 47 L. ed. 366,
370, 23 Sup. Ct. Rep. 237. Wliat was said in that case with regard to
the po?/ers of the States applies with equal force to the powers of the
nation in cases where the states individually are incompetent to act.
We are not yet discussing the particular case before us, but only are
considering the validity of the test proposed. With regard to that, we
may add that when we are dealing with words that also are a constituent
act, like the Constitution of the United States, we must realize that
they have called into life a being the development of which could not
have been foreseen completely by the most gifted of its begetters. It
was enough for them to realize or to hope that they had created an
organism; it has taken a century and has cost their successors much
sweat and blood to prove that they created a nation. The case before
us must be considered in the light of our whole experience, and not
merely in that of what was said a hundred years ago. The treaty in
question docs not contravene any prohibitory words to be found in the
Constitution. The only question is whether it is forbidden by some in-
visible radiation from the general terms of the 10th Amendment, We must
consider what this country'- has become in deciding what that amendment
has reserved. . .
As most of the laws of the United States p^re carried out within the
states, and as many of then deal with ma^tters which, in the silence of
such laws, the state might regulate, such general grounds are not enough
to support Lissouri' s claim. Valid treaties, of course, 'are as binding
within the territorial limits of the states as they are effective through-
out the dominion of the United States'. Baldwin v. Franlcs, 120 U. S.
678, 683, 30 L. ed. 766, 767, 7 Sup. Ct. Rep. 656, 763. No doubt the
great body of private relations usuaJly falls within the control of the
state, but a treaty may override its power. We do not have to invoke
the later developments of constitutional law for this proposition; it
was recognized as early as Hopkirk v. Bell, 3 Cranch, 454, 2 L. ed. 497,
with regard to statutes of limitation, and even earlier, as to confisca-
tion, in Ware v. Hylton, 3 Dall. 199, 1 L. ed. 568. It was assumed by
9361
-35-
Chief Justice Marshall v/ith regard to the escheat of land to the state
in Chirac v. Chirac, 2 Wheat. 259, 275, 4 L. ed. 234, 238; Hauenstein v.
Lynham, 100 U. S. 483, 25 L. ed. 628; Ceofroy v. Riggs, 133 U. S. 258,
33 L. ed. 642, 10 Sup. Ct. Rep. 295; Blythe v. Hinckley, 180 U. S. 333,
340, 45 L. cd. 557, 561, 21 Sup. Ct. Rep. 390. So, as to a limited
jurisdiction of foreign consuls within a state. WildenJrius' s Case (Mali
V. Keeper of Common Jail) 120 U. S. 1, 30 L. ed. 565, 7 Sup. Ct. Rep.
383. See Re Ross, 140 U. S. 453, 35 L. ed. 581, 11 Sup. Ct. Rep. 897.
Farther illustration seems unnecessaiy, and it only remains to consider
the application of established rales to the present case.
Here a national interest of very nearly the first magnitude is in-
volved. It can be protected only by national action in concert with that
of another power. The subject-matter is only transitorily within the
state, and has no permanent habitat therein. But for the treaty and the
statute, there soon might be no birds for any powers to deal with. We
sec nothing in the Constitution that compels the government to sit by
while a food supply is cu.t off and the iTrotectors of our forests and of
our crops are destroyed. It is not sufficient to reply upon the states.
The reliance is vain, and were it othervdse, the question is whether the
United States is forbidden to act. We are of opinion that the treaty and
statute must be upheld. Carj'- v. South Dal^ota, 250 U. S. 118, 63 L. ed,
886, 39 Sup. Ct. Rep. 403.
Decree affirmed."
From all that has been said it clearly appears that when the federal gov-
ernment enters into a treaty, it acts for the nation as a whole, that its
power extends to all subjects of governmental regulation irrespective of
whether the matter has been delegated to Congress or reserved to the States,
in short, to use the phraseology of Mr. Justice Holmes in Missouri v. Holland,
supra, what Congress cannot do unaided it can do when aided by a treaty.
Reservation of certain pov^ers to the States under our governmental system is
in no way a limitation on the treaty-mal<:ing pov/er of the federal government.
(99-100)
(99-100) The overwhelming majority of the modern writers on the subject has
reached the conclusion that the powers reserved to the States are not
a limitation on the treaty power of the United States; some reached
that conclusion with enthusiasm, others with great reluctance. The
following is a list, not an exhaustive one, of modern writers on both
sides of the question. In favor of the preceding statement; Charles
H. Burr: The Treaty-MrJcing Power of the United States, Proceedings
of the American Philosophical Society (1912), Vol. 51, pp. 327-374;
Charles Henry Batler: The Treaty Making Pov/er of the United States
(1902); Edward S. Corwin: National Supremacj^, Treaty Power vs. State
Power (1913); Samuel C. Crandall: Treaties, Their Mailing and Enforce-
ment (2d ed. , 1916), pp. 246-265; Charles Cheney Hyde: International
Law Chiefly as Interpreted and Applied by the United States (1922),
Vol. 2, pp. 12-15; Frank B. Kellogg: Treaty-Malcing Power, Report of
Annual Meeting of American Bar Association (1913), p. 331; Pittman
B. Potter: Inhibitions upon the Treaty-Making Power of the United
States, 23 Am. Journal of International Law, 456 (1934); Charles
Pegler: Limitations of the Treaty-Malcing Pov/er, 98 Centr. L, J. 41
(1925); Elihu Root: The Real Question under the Japanese Treaty, 1
American Journal of International Law, 273, 278 (1907); George
Sutherland: Constitutional Power and World Affairs (1919);
9361
This conclusion is strengthened "by the conclusion reached in the pre-
ceding chapter. If the States have no po\7er to enter into agreements with
foreign nations regulating labor conditions, the federal government must have
that power since it is not to "be assuined that the people of the United States
desired to withhold from their government the power to enter into treaties
into which other civilized governments may enter.
(99-100) L. L. Thompson: State Sovereignty and the Treaty-Malving Power, 11
(Cont'd) Gal. L. R. 242 (1923); ¥. W. Willough'by: The Constitutional Law of
the United States (2d ed. ) , 1929, sec. 283;
Contra:
¥illiaj.i E. Mikell: The Extent of the Treaty-MsOcing Power, 57 U. of
Pa. Law Rev. and Am. L. Reg. 435, 458 (1909); Shackelford Miller:
The Treaty-Mal<:ing Power, American Law Review, Vol. XLI, p. 527 (1907);
Henry St. George 'Tucker: Limitations on the Treaty-Making Power
(1915).
Por hitliography on the subject see Library of Congress List of ref-
erences on the treaty-malting power compiled under the direction of
Herman H. B. Meyer, Chief Bibliographer, 1920.
9361
-3S-
CH/iPTER IV
HAS THE FEDERJIL GOVERIC;IENT POWER TO EITTER INTO
TREATIES ^7ITH FOREIGN NATIONS RSGULiiTING LABOR
CONDITIONS IN LUSII-IESSSS THE REGULATION OF
WHICH HAS BEEN DELEGATED TO CONGRESS?
Not only is the argioment made th^.t the United States Government has
no pouer to enter into treaties regulating matters reserved to the States,
"but it is also argued that the federal government has no pouer to enter in-
to treaties regulating matters delegated to Congress. O"bviously, if "both
of these contentions v/ere right, there vrould "be nothing left concerning
which a treaty might be validly entered into. It -jas shown in the preced-
ing chapter that the decisions of the Supreme Court of the United States
are uniformly to the effect that the federal government is not limited, vrh^n
entering into treaties, "by the reservation of certain matters to the States.
Similarly, other decisions of the Supreme Court will shor,^ that the federal
government may enter into treaties regulating matters delegated to Congress.
The earliest case on the subject is United States v. Schooner Peggy
(101^
^ .An Act of Congress of 1798 authorized the President to issue com-
missions to ov/ners of American armed vessels granting them the right to
capture French armed vessels on the high seas. This v/e.s done in connection
with the frequent attempts of French armed vessels to prey upon the com-
merce of the United States. In axcordance v/ith such commission the French
armed vessel Peggy vras seized ajid condemned "by a judgment of a federal
court on September 23, 1800. An appeal was talcen from the judgment. On
September 30, 1800, a convention v^as signed by the United States and France
containing a provision, among others, that "property captured and not yet
definitely condemned. , .shall be mutually restored." Chief Justice Marshall
held tha>,t the Peggy had not been definitely condemned in viev/ of the pend-
ency of the appeal and that the vessel had to be returned to the French
owner. Thus an Act of Congress, passed in the exercise of its power to
regulate commerce or to declare v/ar, or both, was superseded by a treaty
regulating the same subject matter.
( 1 0'^')
In Foster v. Neilson ^-^^^^ the Court said:
"A treaty is in its nature a contract betv^een two nations,
not a Legislative Act. It does not generally effect, of itself,
the object to be accomplished, especially so far as its operation
is infraterritorial; but is carried into execution by the sovereign
power of the respective parties to the instrument.
(lil) 1 Cranch 103, 2 L. Ed. 49 (1801)
(102) 2 Pet. 253, 7 L. Ed. 415 (1829)
9361
-o9-
"I;.i the 'United States a different jrinciple is
^stp.olished, O^ir Constitution decl-^res a tre^.ty to
"be the !■:'■' of the Innd, It is, consoq .eitl--, to be
reg-^rded in courts of justice 3,s enn.iv-lent to an
Act of the Legislature, ^-'henever it ooer^tes of it-
self ^-/ithout the aid of any leeisl.'^.tive nro^ision, "
In Geofroy v. Riggs, '^ '^French heirs of a deceased citizen of
the United States and resident of the District of Colarabia hroaght an
action to coiTpel the sale of his real estate, clair^ins; a share of the
proceeds. In 18U1 Congress, having exclusive po--er to legislate for
the District of Columbia, continued the lans of ;:aryland in force in
that part of the District which had been ceded ''oy Maryland, Under
that law a Trenchman could not inherit land from a citizen of the
United States, In 1853 a treaty was entered into between the United
States and ]?rance which v'-^.s construed 'oy the Court to have given French-
men a right to inherit land in the District of Coli:unbia from citizens
of the United States, TLe Suprevne Court of the United States held that
the treaty had superseded the law of the District of Gol.imbia, This
was clearly a case where a matter within the ezclasive jarisdiction of
Con^TCss and on which Congress had acted, ^^as held also to oe i-'^ithin
the sco"oe of the exercise of the treaty making po^-'er of the Federal
Govern-iGnt,
(104)
In Foil: Young Yo v. United States, a Chinese Iriborer claiming
to be on his v/ay from China to Mexico, stopped at San Francisco, stat-
ing th^.t he ^-"-.s desicious of continuing his journey to Jlexico by boat
from San Francisco, He ^-'as det'^ined by the United States Collector of
Custop.s and ordered deported to China, A treaty bet^'^een the United
States and China entered into in 1894 provic'ed:
"That Chinese laborers shall contin^.e to enjoy
the privilege of transit across the territory
of the United States in the coj.r;:;e of their
journey to or from otner countries, subject to
such regulations bv tne Government of the
United States as may be necessary to prevent
said privilej;e of transit from, oeing abused,"
In this case the Chinese laborer filed a petition for a ^^rit of habaes
corpus, but his jetition w-^s dismissed. The Supreme Court affirmed,
saying in prrt;
"T'e regard this (above-quoted provision of treaty)
as explicitly recognizing existing rep.ilations, and
as a.ssenting to their continuance, and to s".ch modi-
fications of them as might be fo-'.md necessary to pre-
vent abuse. It dealt with the subject specifically,
and was operative without an Act of Congress to carry
it into effect,"
(103) 133 U.S, 258, 33 L. Ed. 542 (1889)
(104) 185 U.S. 296, 46 L, Ed. 917 (1901)
9361
-40-
The conclusion clearly is that the federal .^overmitint has poorer
to enter into treaties coverin-^ matters delegated to CoriP^ress by the
Constitution and that such treaties, if self-executing, repeal previous
Acts of Congress,
The converse of the foregoing proposition is also true. An Act
of Con'Tess repeals a previous treaty. Thus in the Cherokee Tobacco
Case (105) Cherokee Indians claimed that a tax iaposed oy Congress on
their fflanufacturing tobacco in the Cherokee co'intry was void because
it violated a treaty previously entered into bet^^'-een the United St-^.tes
and tl.e Cherokee ITation, The Supreme Court of the United States held
that there ^-.us a clear repugnancy between the Act of Con.?"ress and the
Tres,ty and that the Act of Congress, being later in time, must prevail.
In the case of Whitney v, Robertson (106) the Coiirt said of an Act of
Con':ress: "It '-''^.s passed after the treaty with the Dominican Republic;
and if there be any conflict between the stipulations of the treaty and
the require- -ents of the law the latter must control," In the Head :;oney
Cases (107) a claim ^^as made that an Act of Congress of 1882 -^hich imposed
a 50^' ta:; for erch alien passenger arriving by boat in the United States
conflicted with treaties previously entered into bet^''een the United
States and several foreign coLintries, but the Suprei-ie Court held
that the judiciary had to follo--^ the Act of Congress if it "^as later
in tine.
In the Chinese Exclusion Case (108) a Chinese laborer ^-^ho had re-
sided in the United States for two years left for China in 1887, with
the intention of ret:iTning to this country. He held a certificate from
the Collector of Customs at San Francisco pernitting him to return.
About a year later he came back to San Francisco but was prohibited
from landing because a week before his arrival an Act of Congress had
become effective annulling all permits granted by the Collectors of
CustODS, though such peri'iits had been granted under authority of pre-
vious Acts of Congress, The claim was advanced that the Act annulling
those permits was a violation of a treaty with China but the Supreme
Court held that an Act of Congress and a treaty stand on an eqaal foot-
ing and the Act being later in time must prevail,
TJhen ^.'e refer to the jurists and other writers on the subject \ie
find lir, J^.stice Sutherland (109) saying: ",,,the mere fact that Congress
is aoithorized to legislate upon a particular subject does not, in ny
judgment, rem.ove it from the jurisdiction of the treaty-making power,
nor prevent treaty stipul-^tions respecting it from oecoming obligatory
and effective withoat Coan^essional action, " The saie view has been
(lO'j) Tvjo EJ-ndred and Seven Half Pound Papers of Smoking Tobacco, etc,
Elias C, Boudinot et al, claimants v. The United States, 11 "all,
61S, 20 L, Ed, 227 (1870)
(106) 124 U.S. 190, 31 L. Ed, 386 (1887)
(107) EdvG V. Robertson, 112 UcS, 423, 28 L. Ed, 7t<8 (1984); „...''.
(108) Chae Chan Ping v. The United States, 130 U,S. 581, 32 L.Ed, 1058 (1888)
(109) Geor;,e Sutherland? Constitutional power and yorld Affairs, 1919, p, 150
9361
-41-
expreoced by Charles H# Burr (110), A contrary vie'7 h-is exorer.sed
oy'lillicici E, I'ikell (111).
Tl"e yrn.ctice of the government in entering; into treaties sho'.7s
that on iLLLVi^jierable occasions treaties h-\ve been eite:. to. i^to touch-
in,^ 0 •- :'.'^.ttei-s expressly dele'^atsd to Con2;ress by the Constitution,
For instcnce: Article I, Section 8 /--^ives Con'-ress power to r:;^ilate
CO 1 lerce v.'ith foreign nations. Treaties of commerce are entered in-
to re-; Ici'ly by the United States Covernment and have been entered
into from the tine of the formation of ::he United States, including
the per.od c":rring which the United States f mctJoned inder the
Artic?.es of Confederation,
The Conrrecs is given po^"'er "to promote the Pro-?;ress of Scieice
and -jLseful Arts, by secjTing for limited Times to Axthors and Inve.itors
the ericlv.sive Ri ^ht to Their Eosoective Writings and Discoveries."
Internet: on-'^.l a,greements res; dating these very matters have oejn
enter -.d into by the United States for the last 5C or 60 years -'ithoj.t
anybody raising any qn.estion as to the oropriety of the Q-overnm^nt
enter in.3; into such a-^reements,
Con-.T^ss is .^iven po'Ter "to provide and maintain a Navy: -
to mr/.:e P.-.-'les for the government and Re-^Mlation of the land and naval
forces". In 1922 the United St^-tes Government entered into an inter-
national c<^reeient limiting naval armament, (112)
The federal government undoubtedly has po-'er to enter into
treaties 'vith forei^rn nations regulating labor conditions in busi-
nesses the regulation of which has been delegated to Congress,
(110) Ch-r-i-les H. E-orr: The Treaty I.'a'iin'-: Po"-er of the United StVces and
the Hethods of Its Enforcement as .Iffectin-; the Police Pollers of
the States; Proceedings of the American philosoohical Society,
Vol, 51, p. 271, at pp. 306-327 (1912)
(111) The Zxtent of the Treaty-l^lcm-; Po-er of the Presicent and
Senate of the United States, '-niversity of Pennsylvania La'7
Revierr and American LaT ::^e-ist3r, "^''ol, 57, "o, 435, at p,455 (1909)
(112) See s-rora note 17,
9361
CH4PTER V.
IS THE DUE PROCESS CLAUSE OP THE FIFTH AMENDMENT A LIMITATION ON
THE POWER OF THE FEDERAL GOVERNMENT TO ENTER INTO TREATIES?
Anyone xiho studies Ainerican constitutional law raust very soon come to the
conclusion that the idea of v/holly unlimited power is foreign to the American
constitutional system. Judges of the Supreme Court and practically all \7rit-
ers on the suhject have said on various occasions that the treaty-mal'ing power
is not unli'iited. James Madison wrote in 1791 that treaties were the supreme
law of the land "provided however, that the treaty be within the prerogative
of mailing treaties, which, no douht , has certain limits". (113) In the case
of ivlissouri v. Holland, 252 U.S. 415, 64 L.Ed. 641 (1919) Mr. Justice Holmes
said: "We do not mean to impl"^ that there are no qualifications to the treaty-
making pov;er.'" Charles Henr3'- Butler (114) said:
"...the fact that the United States is a Constitutional Government
precludes the idea of any absolutely unlimited power existing. The
Supreme Court has declared that it must be admitted as to every power of
society over its members that it is not absolute and unlimited; and this
rule arpplies to the exercise of the treaty-making power as it does to
every other pdwer vested in the Central Government. 'The question is not
whether the power is limited or unlimited, but at what point do the
limitations begin, "
Since no treaty has ever oeen declared invalid no one can say authorita-
tively that there is any specific valid limitation on the treaty-raaliing power.
There have been several pronouncements by the Supreme Court and considered
statements ''oy i/riters which I believe correctly state certain linitr.tions, for
instance: That the treaty power cannot be used to abolish the Constitution of
the United States or to do away with the separa.tion of powers as the basic
feature of our governmental system. Apart from that it has been stated on
many occasions that the federal government cannot do by a treaty what has been
expressly forbidden by the Constitution, For instance, in Geofroy v. Riggs
(115) the Suroreme Court said: "It would not be contended that it (the treaty-
making power of the federal government) extends so far as to authorize \7h£it
the Constitution forbids,.,"
l.Ir, Justice Holmes in Missouri v, Holland impliedly took notice of that
position by saying "the treaty in question (the Migratory Bird Treaty) does
not contravene any prohibitory words to be found in the Constitution,"
In Asakura v. City of Seattle (116) the court while invalidating a city
ordinance because it violated a treaty, said:
"The treaty-m'aking power of the United States is not limited by any
ezrpress provision of the Constitution, and, though it does not extend * so
far 8.S to authorize what the Constitution forbids' it does extend to all
proper subjects of negotiation between our governiient and other n^.tions,"
(113) Writings of Madison, Vol, 1, p. 524 as quoted in 13 Op.Atty,G€n, 357.
(114) The Treaty Making Power of the United States (1902), Vol.2, p. 350,
sec. 455,
(115) 133 U.S, 258, 34 L,Ed. &42 (1839), supra note 5.
(116) 265 U.S. 332, 63 L,Ed. 1041 (1923)
9361
-43"
Ivlr, Justice Sutherl-md said: (117)
"TTnatever the Constitution forbids absolutely, oi" course, may not be
done by a treaty any more than by any other method ... It is clear tiiat
•jhen the Constitution -orohibits absolutely the doin.3 of any particular act
it in bu.t oji illustration of the prohibition to say that the act cannot be
done ujider the po\7er to make treaties;..,"
The Constitution of the United States and the amendments thereto contain
scores of eig^ress lorohibitions. It cannot be said rvith assurance that every
one Ox these prohibitions is a li-nitation on the treaty-nakin^ power. To (^ive
an authoritative answer one would have to investigate each prohibition to
learn the reason for it, the evil that was intended to be remedied by the pro-
hibition, construction by the courts and other matters. We are interested in
one -orohioition, contained in the Fifth Amendment - "No person... shall be
com-oelled in any criminal case to be a \-itness against himself, nor be de-
prived of life, liberty, or property, 'ithout due r)rocess of law;,,."
The s'oecific que::tion before us is '-'hether this due process clause is a
limitation on the treaty-rnakin.;^ power. The Fifth Amendment was adopted as a
part of the so-called bill of ri,{?;hts embracing the first ten amendments.
Though the federal Constitution was conceived as giving to the federal govern-
ment onl3'' enumerated powers, many feared that tloB federal government might con-
sider itself not bound to respect civil liberties and various personal rights
which were guaranteed to the people by state constitutions. In order to allay
those fears, the first Congress proposed twelve amendments of which ten were
ratified and they are the first ten amendments to the Constitution,
There seems to be no record of any discussions in the federal convention
with reference to the relationship between the treaty power and the personal
liberties of the people of this country, but there are records of such dis-
cussions taking place in the state conventions called to ratify the federal
Constitution, In the Virginia Convention (118) Patrick Henry spoke a.gainst
ratification of the Constitution, on June 18, 1788, He reminded his audience
of the case of a Russian ambassador to England who had been unlawfully arrest-
ed in i::i -land whereuxion the Russian Zmperor demanded of Q,ueen Anne tha.t the
man who was ,guilty of the unlawful arrest be delivered to the Emjjeror of
Russia for punishment. Queen Anne stated that under the constitution and
la^-^s of England ths-t coijld not be done, Patrick Henry argued that since the
treaty pov.^er was granted without any express limitations, in case an incident
of tliat sort should occur in this country, the President and the Sena,te night
enter into a treaty v;ith the government of Russia to deliver the giiilt^'- person
to Russia, Ks continued:
"Suppose you be arrainged as offenders and violators of a treaty
made b",- this government. Will you have that fair trial which offenders
are entitled to in your own government? Will you plead a right to the
trial ''oy jury?"
Janes Lla-dison re-plied: (119)
"As to the case of the Rusrian ambassador, I shall say nothing. It
(117) C-eorge Sutherland: Constitutional Power and World Affairs (1919)
-p-p, 143, 146,
(118) Elliott's Debates on the Federal Constitution, vol. 3, p. 503.
(119) Elliott, Op, Cit,, vol. 3, p. 514
9361
-44-
iG rs inap'oli cable as many other quotations made by the gentleraoji. I
concoivG that, as far as the "bills of rights in the states do not e::nress
an" thinr- foreign to the nature of such things, and express fundanental
-orinciples essential to liberty, and those privileges which are declared
necessary to all free people, these rights are not encroached on by this
governnent, "
Thus, according to Madison, even prior to the adoption of the Fifth Ai-nenc'jnent
the pei'sonr.l rights of the American people were safeguarded against the exer-
cise of the treaty power of the federal governiaent.
In the ITorth Carolina Convention Mr. Henry Abbott s.-.id on July 30, 1788
(120)
"It is Ceaied oy some people, that, by the power of making treaties,
they night make a treaty engaging with foreign powers to adopt the Soman
Catholic religion in the United States, which would prevent the people
from worshipping G-od according to their oivn consciences. The i-orthj''
VAcmbor from Halifax has in some measure satisfied my mind on this sub-
ject. But others ma/ be dissatisfied."
It' seems clear that vhen the participants in the state conventions
ratified the federal constitution they did so either because of a conviction
or because of a belief, more or less certain, that the treaty-making povrer
was not potent enough to encroach on their personal liberties,
ITo one can claim that the constitutional amendments adopted a few yesxs
later weakened the status of those personal liberties. On the contrary those
amencuuents clearly strengthened the personal liberties of the people.
Charles Henry Butler (121) said;
"In fact the (treaty making) -oower is, and must be, plenary, that
v;ord being used in its general significance, except so far as it has
been limited by the rule laid dovm by the Supreme Court that where
plenary- iDOwers have been reposed in the Government of the Unites States
the].- must be exercised in conformity with the fundamental principles of
liberty which form the basis of our constitutional government,"
Edwin S. Corwin (122) exroresses the view that the "distinction between
certs.in natural rights enforced in the Constitution by prohibitions against
interference v.lth them, and what may be termed artificial or remedial rights,"
the former class including a right to due process of law "may be confidently
claimed as establishing the limits, not merely of congressional power, bu.t of
the treaty power as well, whenever it impinges unon private ri.'^hts,"
Willoughby states (123) : "Though comprehensive in scope, the treaty-
making power of the Federal Government must, in its exercise, as concerns the
substance of the agreements entered into, have regard for the various con^
stitutional limitations, necessarily imDlied as well as those expressed, v/hich
(120) Elliott, Op, Cit., vol, 4, p. 191
(121) The Treaty Power of the United States, vol. 2, p. 352 (1902)
(122) National Supremacy, Treaty Power v. State Power, (1913) pp, 15-17,
(123) T7, 17. Willoughby: The Constitutional Law of the U.S,, second ed,,
(1S29) vol. 1, p. 519,
9361
-45-
restrain generally the exercise of Federal powers. Indeed, the SrJiprerie Court
has severrl timos said in so many '^^ords, that the authorltr gi-^^n to- -btre Uhit^
States to enter into tre.:?.ties, does not extend "so far as to authorize v/hat
the Constitution forhids,"
ij^orrost R. Black reached the follo77ing conclusion: (123a)
"A treaty must not interfere -ith the rights ...^^uaranteed to indivi-
duals (on the continental mainland of the United States) hy the C:nstitu-
tion. The Bill of Ri^^hts generally would constitute a limitation and
would protect individuals nithin the United States."
Those who favor the state-rights doctrine, that is, that the treaty power
is subordinate to the po\rers reserved to the States, "being inclined to linit
federal power, of coui^se "believe that the treaty-making power is liv.iited "by
the due rrocess clause. Thus Henry St. George Tucker (124) states as his
conclusion: "Ths.t a treaty cannot talce away or impair the fundamental rights
and liherties of the people secured to them in the Constitution itself, or in
any Aj.iendnent thereof." William E. Mikell assumes that the amendments to the
Constitution which contain the so-called "bill of ri ;hts are limitations on
the treatj'-naking power. (125)
On the other hand Pittman B. Potter (126) believes that to determine i hat
limitations there are on the treaty power of the United States it is necessary
to look to international lav/ as well as to the Constitution of the United
States, that according to international law the power of a state to enter into
treaties is unlimited, that the United States Constitution does not ezq^ressly
impose caiy li:.:itations on the treaty-making power and therefore none shcul.d be
recognized. It is submitted that the Supreme Court will not take that view.
Though the decisions of the Supreme Court do not contain discussions a.s
to the relationship between the due -process clause and the treat^'^making power ,
there are certain other discussions in the decisions which can be used by way
of analogy. The treaty-making po'-rer, including in its scope raa.tters reserved
to the States as well as those delegr^ted to Congress, in that regard resembles
very strongly the powers of Congress with reference to territories. Therefore,
views of the Supreme Court expressed in connection with legislation for terri-
tories mp,3" shed light on the treaty power.
In the case of Downes v. Bidwell (127) an action was brought against the
Collector of the Port of New York to recover back duties paid under protest
upon oranges consigned from Puerto Rico to the plaintiffs at New York City in
November 1900, after the passage of fne so-called Poraker Act which provided
a civil government and a s^'stem of revenues for Puerto Rico. The Poraker Act
imposed the duties but the plaintiffs claimed that, Puerto Rico, being a part
of the United States after cession by Spain and having a government organized
by the United States Congress, the duties imiDOsed were unconstitutional because
(123a) The U.S. Treaty Power and Limited Government, 11 St. Louis Law Rev,
6, (1929) at p. 17
(124) Linitations on the Treaty-Making Power (1915) pp. 430 et seq,
(123) T7i"^.liam E. Mike?l: The Extent of the Treaty-MaJcing Power of the
President and Senate of the U.S., Univ, of Fa, Law Review and American
La/.- Register, Vol. 57, pp. 4-35, 528, at p. 531 (1909)
(125) .Inhibitions upon the Treaty-Making Power of the U.S., 28 Aa. Journal
of International Law, 456 (1934) at p, 473.
(127) 182 U.S. 244, 45 L. Ed. 1088 (1900)
9361
-46-
they violated the provision of Article I, Section 8 of the Constitution that
"all duties, imposts, and excise shall "be uniform throughout the United States"
The Supreme Court held (5 to 4) that the duties were validly imposed, that
Puerto Rico was not a part of the United States within the meaning of that
clause of the Constitution and that the Constitution did not of its o\7n force
extend to Puerto Rico, in the absence of Congressional legislation expressly
extending the Constitution to that land. In one of the prevailing opinions
Brov-n, J,, said at p. 277:
"To sustain the judgment in the case under consideration (dismissing
the cQ-nplaint on demurrer), it "by no means becomes necessary to show that
none of the articles of the Constitution apply to the island of Porto
Rico, There is a clear distinction between such prohibitions as go to
the very root of the power of Congress to act at all, irrespective of
tine or place, and such as are operative only 'throughout the United
States* or among the several states. Thus, when the Constitution de-
clares that 'no bill of attainder or ex post facto law shall be passed*
and that 'no title of nobility shall be granted by the United States*,
it goes to the competency of Congress to pass a bill of that description.
Perhaps the same remark may apply to the first amendment, that 'Congress
shall make no law respecting an establishment of religion, or prohibiting
the free exercise thereof; or abridging the freedom of speech, or of the
pressj or the right of the people peacefully to assemble and to petition
the government for a redress of grivances". We do not wis-h, however, to
be understood as expressing an opinion how far the bill of rights con-i
tained in the first eight amendments is of general and how far of local
application. "
In another prevailing opinion, that of Mr. Justice White with whom
Shiras and IvicKenna, JJ, concurred, the following was said (pp. 294, 295):
"Albeit, as a general rule, the status of a particular territory
has to be taken in view when the applicability of any provision of the
Constitution is questioned, it does not follow, when the Constitution
has absolutely witliheld from the government all power on a given subject,
that such an inquiry is necessary. Undoubtedly there are general pro-
hibitions in the Constitution in favor of the liberty and property of
the citizen, which are not mere regulations as to the form and raanner
in which a conceded power may be exercised, but which are an absolute
denial of all authority under any circumstances or conditions to do
particular acts. In the nature of things, limitations of this character
cannot be under any circumstances transcended, because of the complete
absence of power."
The dissenting judges not only agreed with those views but carried them
to the extreme conclusion holding that the constitutional provision prescrib-
ing imiform taxation also applied to Puerto Rico,
In Territory of Hawaii v. Mankichi (128) a Japanese subject was convicted
in Hawaii of manslaughter in accordance with the usual procedure in the Repub-
lic of Hawaii prior to its incorporation as a Territory^ He obtained his
discharge by a judgment of a federal court which invalidated the conviction
on the grounds that his indictment had not been found by a grand jury and that
he had not been convicted by an unanimous verdict of the jury, as required by
the United States Constitution. The procedure followed in his trial v;as the
(128) 190 U.S. 197, 47 L. Ed. 1016 (1903)
9361
-47-
estaMished procedure of Hawaii prior to June 1900 when the United States
Constitution was extended to the islands hy a Congressional Act, and Hawaii
was formally incorporated as a Territory, His trial took place hefore June
1900. By a 5:4 decision the Supreme Court reversed the lower federal court
and held that prior to the extension of the Constitution to Hawaii the con-
stitutional requirements as to grand and petit juries did not apply end that
Mahlcichi was therefore duly convicted.
In Dorr v. United States (129) Dorr and O'Brien, editors of a ne-'spaper
published in Manila, Philippine Islands, were convicted of lihel on the "basis
of headlines printed in the newspaper. They demanded a jury trial in the court
of the City of Manila, Philippine Islands, hut were convicted "by a court with-
out a jury \/hich was at that time the regular procedure in the Philippine Is-
lands, The Supreme Court affirmed on the ground that the Constitution of the
United States had not "been extended to the Philippine Islands. The court said:
"Until Congress shall see fit to incorporate territory ceded "by
treaty into the United States, we regard it as settled hy that decision
(Dov/nes v. Bidwell, 118 tJoS. 244) that the territory is to "be governed
under the power existing in Congress to make laws for such territories
and suhject to such constitutional restrictions upon the powers of that
"body as are applicahle to the situation, ., "
The court then quotes with approval language of Mr. Justice Brown in the
case of Downes v, Bidwell, supra, as follows:
"We TO uld even go farther, and say that most, if not all, the
privileges and immunities contained in the hill of rights of the Consti-
tution were intended to apply from the moment of annexation; hut we place
our decision of this case upon the ground that the two rights alleged to
he violated in this case (right to trial hy jury and presentment hy grand
juTjT-) are not fundamental in their nature, hut concern merely a method
of procedure which sixty years of practice had shown to he suited to the
conditions of the islands, and well calculated to conserve the rights of
their citizens to their lives, their property, and their well heing."
The ahove cases shov/ that even where the Constitution is not hinding,
for instance in a territorj^ to vhich Congress has not yet extended the Consti-
tution, Congressional legislation may not violate the hill of rights, accord-
ing to the view expressed hy the Supreme Court,
The exceptions made, in that the Court recognized the validity'' of local
legal procedure which did not comply with the requirements of the Constitiition
for grand juries or petit juries, were justified hy the Court as referring to
rights "not fundamental in their nature" and concerning "merely a method of
procedure,"
If that is the way the Supreme Court feels ahout the bill of rights heing
a limitation on federal law where the Constitution does not apply, the proba-
bility is very great that the Coxvct will consider the bill of rights to be a
limitation on federal treaties which operate on citizens of the United States
and are entered into under the Constitution of the United States.
(129) 195 U.S. 138, 49 L. Ed. 128 (1903)
9361
-43-
The next question to "be considered is this: If the due process clause is
a limitation on the treaty-making power, what is the effect of that limitation
on treaties which may attemiDt to regulate labor conditions?
A, Minimum wages.
The case of Adkins v. Children's Hospital, (130)-(13l) held that fix-
ing of minimum wages violates the due process clause of the fifth Amendment,
In 1918 Congress passed the District of Columbia Minimum Wage Act. Pursuo,nt
to statute a Board was organized to establish "standards of minimum wages for
women in any occupation within the District of Columbia, and what wages are
inadequate to supoly the necessary cost of living to any such women workers to
maintain themselves in good health and to protect their morals,"
The Children's Hospital which employed many women brought an action to
enjoin the Board from enforcing orders fixing minimum wages. The Supreme
Court of the United States agreed with the cohorts of the District of Col-urabia
in holding the statute invalid on the ground that it limited the freedom of
contract of employer and employee. This decision (5 to 3, Brandeis, J. not
voting) is still law and would probably prevent the Government of the United
States from entering into treaties fixing minimum wages. Whenever the govern-
ment enters into a treaty it impliedly represents that it has constitutional
power to do so. In viev; of the Adkins case the Crovernment cannot make any
such representation in good faith where the proposed treaty is to deal vrlth
fixing minimum wages.
B, Ma::imum Hours of labor.
Bunting v. Oregon (132) upheld a statute of Oregon passed in 1913
which provided "no person shall be employed in any mill, factory, or manufact-
uring establishment in this state more than ten hours in any one d-B.y, except
watchmen and employees who are engaged in any necessary repairs, or in cases
of emergency, where life or property is in imminent danger;..." Bunting had
employed a v;orker in a flour mill in Oregon for 13 hours in one day in viola^
tion of the statute and was convicted. The Supreme Court affirmed and held
that the statute did not violate the due process clause of the 14th Amendment,
that it v;as a proper exercise of, the police power of the state. Though a con-
tention was made that the law was not either necessary or useful "for preserva-
tion of the health of employees in mills, factories and manufacturing establish-
ments" the 'Xjourt accepted the statement of the legislature of Oregon and the
Supreme Court of that State to the effect that the statute was necessary and
useful for the preservation of the health of the workers affected. The case
was decided by a majority of 5 to 3, Brandeis, J, not voting. In view of that
case the federal government is justified in entering into treaties limiting
the hours of labor of employees "in any mill, factory and manufacturing es-
tablisliment". The case did not hold that limitation of hours of labor of all
employees is good under the due- process clause. But there is no logical
reason for distinguishing between an employee in a factory and in a commercial
e s tabl i shmen t ,
It is submitted, therefore, that the federal government would be justi~
fied in entering into a treaty limiting hours of labor,
(130)-(131) 261 U. S. 525, 57 L. Ed. 785 (1923)
(132) 243 U. S, 426, 61 L. Ed. 830 (1917)
9361
-49-
C. Prohibition of child labor.
The Supreme Coui't has held in the case of Sturges & Burns Mfg« Co. v.
BeauchcJirp (133) that a state si^tute which prohibited child labor in hazardous
occupations did not violate the due process clause of the 14th Amendment, In
that case a minor under the age of 16 years was employed to operate a punch
press used in stamping sheet metal in a tinware factory. The statute of Ill-
inois of 1903 prohibited the employment of children under the age of 16 years
in various hazardous occupations including that in which this minor v/as engag-
ed. He was injured while working on the Job and brought an action for damages*
The trial court instructed the jury that if the plaintiff was in fact less
than 16 years old and Vvhen injured was employed by the defendant upon a stamp-
ing machine, the defendant was guilty of a violation of the statute and the
plaintiff was entitled to recover, Hughes, J., for an unanimous court, affirm-
ed judgment for the plaintiff and said in part;
"The Federal question presented is whether the statute, as construed
by the state court, contravenes the 14th Amendment. It cannot be doubted
that the state was entitled to prohibit the employment of persons of
tender years in dangerous occupations, (citations) ... where, as here,
such legislation has reasonable relation to a purpose which the state was
entitled to effect, it is not open to constitutional objection as a de—
priva.tion of liberty or property without due process of law."
Would the Supreme Court uphold a statute, or a treaty, prohibiting child
labor in all occupations? The Supreme Court has not held on that point one
way or another. The state courts in general favor that type of legislation,
A decision by the highest court of Arkansas (134) expressly uphold a sta.tute
prohibiting all labor by children under a certain age.
Since the attack under the due process clause directed against regulation
of labor conditions is based on the alleged desire to preserve liberty of con-
tract, prohibition of child labor would be upheld because infants have no
capacity to enter into absolutely binding contracts and adults who deal \7ith
infants are presumed to be familiar with their legal status. There is no
liberty of contract to be preserved. It is submitted, that treaties prohi-
biting child labor may be entered into.
As far as is known no one has ever claimed that the Supreme Court of the
United States has no power to declare a treaty unconstitutional, except, per-
haps, by implication, Pittman B. Potter (page 45) of this paper. Statements
have ceen made that the power of the court to declare a treaty unconstitutional
is doubtful. In the early case of Ware v, Hylton (135) Judge Chase said:
"If the court posses a power to declare treaties void, I shall never
exercise it, but in a very clear case indeed."
Justice Holmes said in Missouri v. Holland: (136)
"Acts of Congress are the supreme law of the land only when made in
(133) 231 U.S. 320, 58 L. Ed. 245 (1913)
(134) Terry Dairy Co. v. Malley, Ark, 225 S.W. 887 (1920)
(135) 3 Ball, 243, 1 L, Ed. 568 (1796)
(136) 252 U,S, 416, 64 L, Ed, 641 (1920)
9361
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p-ursiiance of the Constitution, '-'hile treaties are declared to "be so when
mnde under the authority of the United States. It is open to question
uhetlier the authority of the United States means more than the formal
acts prescribed to make the Convention,"
In spite of all those expressed doubts, there is no escaioe from tlie con-
clusion that the Supreme Court of the United States has power to declare
treaties luiconstitutional. If the treaty-uiaking po'.Ter were absolutely un-
limited, obviously nobody would have the power to declare a treaty invalid
after that treaty lias been entered into by tlie President by and with the ad-
vice r,nd consent of the Senate ^-'ith the concurrence of two-thirds of the
Senators preseiit. But since practically everybody admits that the treaty po\7er
is not unlimited, if the treaty^-muking power should transcend its liraitations
and a citizen should find himself compelled to do or to refrain from doing
something beaaoise of a treaty and should apply to a court for relief, the
court v.-ould have to declare that the citizen had been lawfully or unlawfully
compelled to act or restrained from acting. Thus the door would be wide open
to the courts declaring a, treaty valid or invalid under the Constitution of
the United Stt^.tes, To take a crass example: If the President by and with
the advice ajid concent of the Senate, tv/o-thirds of the members present con-
curring therein, should enter into a treaty with a foreign power or a number of
foreign powers, transferring the legislative power of the United States Govern-
ment to the Executive or transferring the executive powers to Congress or agree-
ing to install a person as a ruler of the United States for life or for a
definite n-oiaber of years, and subsequently such a treat^r should be drawn into
controversy by a citizen in a coui't proceeding and such proceeding should find
its \rcy to the Supreme Court of the United States, no one would maintain that
the Supreme Court would be bound to adjudge the rights of the citizen in ac-
cordance vdth that treaty. The Supreme Court v/ould properly declare such a
treaty void, as against the citizen involved. If that is admitted one must
also admit the power of the Court to declare a treaty invalid if the treaty
fixes, let us say, minimum wages and the Court declares that fixing minimum
wages by a treaty amounts to taking people's liberty or property without due
process of law. Ey declaring a treaty invalid the Court would, in effect,
compel the government of the United States to breach its contract which may
necessitate pajinent of damages to the nation injured; but that does not affect
the question as to whether or not a citizen of the United States is bornd by
a treaty which has been entered into in excess of constitutional limitations.
When Congress breaches a treaty by passing an Act in conflict therewith (see
pp. 39-40) the Supreme Court recognizes the Act of Congress as binding and not
the treaty. It is not believed that the Court would shrink from declaring a
treaty -.inconstitutional because such conduct would put the United States
Government in the position of breaching a contract. Naturally, the conviction
of the Court that the treaty does transcend constitutional limitations would
have to be very strong, but on principle it does not seem that the Court would
not claim, and if it feels the need to do so, exercise the power to declare a
treaty uncons"':itutional.
The answer to the question put at the head of this chapter is thaf the
treaty-making power is limited by the due process clause of the fifth amend-
ment.
9361
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chapt:h:r vi.
does a tisaty that 3sgulat3s labor conditions
SZqCJIP-Z LSGISLaTIOH to B2C0};iZ ZF7ECTIV2?
Some treaties tecoine effective -'ithout ^riy ler-^islation, others only
hen folloi:^ed ty legislation. In the early case of Fester v» ITellson (137)
Chief Justice Marshall laid do^rn the distinction het-'een those tn-o !'tinds of
treaties:
''A treaty is in itc natiire a contract "betT/een trro nations, not
a Legislative Act, It does not generally effect, of itself, the object
to he accoiriplished, especially so far as its operation is infraterri—
torial; tut is carried into e^iec^Jition hy the sovereign poorer of the
respective parties to the instrument,
"In the United States a different principle is estaolished, Gur
Constitution declares a treaty to he the lar; of the land. It is, con-
sequently, to he regarded in courts of justice as equivalent to a-i Act
of the Legislature, -.-henever it operates of itself without the ai.d of
any legislative provision, 3ut "hen the terins of the stipulation in-
port a contract - -^hen either of the parties engages to perforti a,
particular act - the treaty addresses itself to the political, not the
jucJ-cial department; and the Legislature must execute the contrixtt
hefore it can heccme a. rule for the court, ^
The distinction relied •'jpon hy Chief Justice Marshall is whether "the
teiTis of the stipulation import a contract" - -r/hich makes it necessary for
the Legisla.ture to '^exec-ate the contraxit hefore it can oecone a rule for
the cc^jrt.'^ In other worr's, it depends on the intent of the parties to the
treaty.
The co-irt has also said in .Thitney v. Rohertson (138):
^Taen the stip-ola-tions (of the treaty) are not self-executing
they can only he enforced pursur^t to legislation to ca.rry them into
effect, and such legislation is as much subject to modification and
repeal hy Congress as legislation upon any other subject. If the
treaty contains stipulatior^s which are self-executing, that is, re-
quire no legislation to make them opern.tive, to tha.t e:ctent they have
the force and effect of a legislative enactment,"
The Supreme Court has held several treaties to he self -executing. In
United States v, 43 Gallons of IJhiskey (139) the treaty involved -ras one
het^een the United States and aji Indian trihe hy which the trioe ceded land
to the United States '.Tith a proviso that fe^^ral liciucr la'^s — those then
in existence as ~ell as those that might he enacted in the future — should
continue in full force and effect throughout the ceded country ^mtil other-
(157) k ret. 253, 7 1, Zd. 415 (lci29',
(138) 124 U,3, 190, 31 L, Zd. 385 (1387)
(139) 93 U.S, 138, 23 L, Sd. 34o (1375)
9561
wise directed o;.- Congress or the President of the United States, That
treaty vas not follov/ed "hy an act of Congress "but in spite of that the
Siipreme Co-art held it to "be self-executing and enforced the treaty.
In DeLi:na v. r.idv;ell (l40) DeLina, c: Company doing iDusiness in Ne\7 York
City imported s'ugar fron Puerto Kico during the autumn of 1899. That was
after the ratification of the treat3'" of cession of Puerto Rico to the
United States "but "before the passage of an Act of Congress providing for
revenue and a civil government for the island. Tlie court held "that "by the
ratification of the trea.t;'' of Paris the Island "became territory of the
United States" and therefore the duty was wrongfully collected since the
srigar v;as not 'inported'".
In ITok Yoimg Yo v. The United States (141 ) alread"- referred to on
page 39 of this 'oaper, the treaty "bet\Teen the United States and China which
perraitted Chinese subjects to continue to enjoy the privilege of transit
across the territory of the United States in the coiu"se of their journey to
or from other countries, was held to "be operative without an Act of Congress
to carr^'' it into effect.
In Asali-uTa v. City of Seattle (142) already referred to on page 62 of
this paper, a treaty "between the United States and Japan which secured to
citizens of either countirf the right to engage in "business in the other was
held to "be self-executing. The co-art said:
"It (the treat;'-) oiperates of itself without
the aid of vnj legislation, state or no-tional,
and it will "be applied ojid given authoritative
effect "by the Court,"
Similarly the treaty of Berlin which terriinated the war "between the
United States raid Germany extended the tine for filing applications for
patents for a period of six months after the treaty was to take effect, that
is, six months after llovem"'oer 11, 1921, An application filed on May 10,
1922 which war, exactly'" one day "before the end of the six months period was
held to have "beeji filed in time "because the treat;;^ provision governing this
matter was helc. to "be self-executing an.d not to reo^uire an Act of Congress
to give it e-ffect. (143) Ilr, Justice Field in his dissenting opinion in
Baldwin v, Tranks (144) enumerates treaties vrhich were held to "be self-
executing, es^oecially those that "declare the rights and privileges which
citizens or su'ojects of each nation may enjoy in the country of the other"
and also those "stipulating that the su"bjects or citizens of those nations
may trade with the United States and for that pioroose freely enter into our
ports with their ships and cargoes, and reside and do business here."
(140) 182 U.S. 1, 45 L. Ed. 1041 (l90l)
(141) 135 U.S, 296, 46 L. Ed. 917 (1901 )
(142) 255 U,S, o320, 63 L. Ed, 1041 (1923)
(143) General Elec. Co. v, Rohertson 21 Fed. (2d) 214, Dist. Ct.D, lid. (1927)
(144) 120 U.S, 678, oQ L. Ed. 766 (lC86) at pp. 703, 704,
9361
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On the other hand some treaties have "been held to require le^^islation
to "becoDe ef:rective.
In Foster v, ileilson, supra (145) Chief Justice Marshall held that a
treaty lDet\7e3:ii Spain and the United Stcites v/hich declared that certain
grants of ceded territor;y' "shall he valid to the same extent as if the ceded
territory had remained under his (the Soanish I.inpj's) dominion," v;as not
self-executin;^; "because the lan^ie.ge imported a promise to do something in
the future, '..'it'i reference to the language ratifying and confirming the
grants, Chief Justice Marshall asked:
^^J^/ vihom shall they he ratified and con-
firmed? Tliis seems to he the language of con-
tract; and if it is, the ratification and con-
firmation which are -oromised must oe the act
of legislation,"
In Baldwin v. Franlis (146) a. treaty- hetween the United States and China
giving the Chinese suhjects a right to reside in the United States and also
granting them aJ.l the rights, privileges, ii-riunities and exemptions which
are accorded to citizens and suhjects of the most favored nation was held to
require further legislation and an Act of Congress which purported to put
the treaty'' into effect was held not to have oeen clear enough to accomplish
the purpose. riiere was a strong dissenting opinion ^oy llr. Justice Field
who held that the treaty was self- executing.
¥ith these cases in the ha.c.l -ground, it will he seen readily that a
treaty/ which attempts to regulate lahor conditions must leave very many
things for arrangement and detailed regulation hy the legislative hodies of
the contracting powers. In each country there are situations that call for
exceptional treatment, there are sectional and regional differences which
must he taJxe?! into consideration hy the legislative authorities of each
country, A treaty cen do no more than provide the frame-work and leave the
erection of o. com'olete structure to the legislative authorities of the
countries involved. Tlie conventions drafted hy the International Lahor
Organization, without exception, refer to the legislative authorities of
the signator^^ countries a,s the hodies charged with the enactment of detailed
legislation to give effect to t'ne conventions and so it must he hecause of
the nature of the regulations involved. Hence, treaties dealing with lahor
conditions, would normally not he self-executing hut \70uld hecome effective
only after aopropriate legislation hy Congress,
Such legislation would have to meet the standards of proper delegation
of power and due process, like any other legislation. A recent example of
an inquiry into these matters is presented in the case of Shouse et al. v.
(145) Note 137.
(146) 120 U.S. 678, 30 L. Ed. 766 (1886)
9361
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Moore, U.S. Marshal et al. (147) In that case the statute which gave
effect to the rai^^rator^ "bird treatj'" already upheld ^j the Supreme Court in
Missouri v. Holland, nas attacked on the ground that it failed to set up
proper standards of delegation of po\7er and that it violated the due process
clause of the fifth amendraent. Both contentions were rejected and the
statute was upheld hy the court.
The necessity of having legislation enacted to put into effect a
treaty dealing with lahor conditions will allay the fears of some people
that the treaty power might "be used to force something on the country with-
out giving the House of Representatives, which is supposed closely to ercpress
the popular will, an opportunity to pass on the matters regulated "by the
treaty.
In view of the subject matter of treaties regulating lahor conditions
and in view of all the conventions drafted "by the International Labor
Organization v/hich without exception provide for detailed regulation by the
legislatures of the member states, it can be stated without hesitation that
no labor treaty can reasonably be ei-qpected to be entered into by the United
States which will be self-executing. ITo labor treaty can reasonably be
expected to be so drafted that it v/ill operate on a citij^en without legisla-
tion by Congress.
(14?) Dist. Ct, H. Dist. Ky. , ilo. 2M, i^ug. 31, 1935, Tord J., reported
in U.S. Law Week of October 1, 1955, pp. 5-6.
9361
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CHAPTER VII
RATIFICATION BY THE Ul^ITED STATES OF COFVENTIONS
ADOPTED BY THE INTERNATIONAL LABOR COl^FERENCE
A. OTpliifgations of the United States with
Reference to Draft Conventions,
The International Labor Conference is a body composed of delegates
of the states which are members of the International Labor Organization.
The conference meets once a year and adopts various recommendations and
draft conventions dealing with labor conditions. There is no obligation
on any member to ratify any draft convention or to embody the principles
laid down in a recommendation in legislation, but a member is not entire-
ly without any obligation with reference to such recommendations and
draft conventions. The obligations of the members are laid down in Article
405 of the Constitution of the International Labor Organization, the consti-
tution being Part XIII of the Treaty of Versailles. The pertinent part of
Article 405 reads as follows: (148)
(l) "When the Conference has decided on the adoption of proposals
with regard to an item in the agenda, it will rest with the
Conference to determine whether these proposals should take
the form: (a) of a recommendation to be submitted to the Mem-
bers for consideration with a view to effect being given to it
by national legislation or otherwise, or (b) of a draft inter-
national convention for ratification by the Members,,,
(5) Each of the Members undertakes that it will, within the
period of one year at most from the closing of the session of
the Conference, or if it is impossible owing to exceptional
circumstances to do so within the period of one year, then at
the earliest practicable moment and in no case later than
eighteen months from the closing of the session of the
Conference, bring the recommendation or draft convention "be-
fore the authority or authorities within whose competence the
natter lies, for the enactment of legislation or other action,
(6) In the case of a recommendation, the Members will inform
the Secretary-General of the action taken,
(7) In the case of a draft convention, the Member will if it
obtains the consent of the authority or authorities within
whose competence the matter lies, communicate the formal
ratification of the convention to the Secretary-General and
will take such action as may be necessary to make effective
the provisions of such convention.
(8) If on a recommendation no legislative or other action is
taken to make a recommendation effective, or if the draft con'-
vention fails to obtain the consent of the authority or
authorities within whose competence the matter lies, no
further obligation shall rest upon the Member,
(9) In the case of a federal State, the power of which to enter
into conventions on labour matters is subject to limitations,
: G shall be in the discretion of that Government to treat a
dra-ft convention to which such limitations apply as a recommen-
dation only, and the provisions of this Article with respect
to r ecommendations shall a-or)ly in such case,,."
(l48) International Labor Organization, Treaty Series, No. 874, pages 13-14,
I have numbered the paragraphs of Article 405 for the sake of con-
venience.
9361
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To iinderstand the raesjiing of these provisions it is necessary to lo^k
into their history. As a part of the machinery that -oaved the v^ay for the
vrork of the Peace Conference in Paris in 1919, a commission was created,
to which each of the allied and associated powers sent two official repre-
sentatives, for the purpose of devising ways to improve the conditions of
labor. President V/ilson appointed Samuel Gorapers and Henry M. Rohinson
representatives of the United States on that commission. The commission
elected Samuel Gompers chairman. The British delegation presented a detpil-
ed drrft outlining the organization and functions of a 'oroposed internr-tional
labor 0 rganiz at ion. That draft was the basis of discussion. The commission
met for the first time on le'bru.BXj 1, 1919, (l49) A draft completed by
the British delegation on January 26, 1919, and not submitted to the
commission, provided in Article 6 thereof that a Conference com'oosed of
delegates of the members of the International Labor Organization should
adopt, from time to timOj drpft international conventions and further "oro-
vided (150) that
"Each of the High Contracting Parties undertakes that it
will within the -oeriod of one year from the end of each
meeting of the Conference make for the House of its
national parliament or other legislative authority an
opportunity to consider the conventions adopted by the
Conference and if its national parliament or other legis-
lative authority "oronounces in f jivor of the Convention
it shall communicate its formal ratification of the Con-
vention to the Director and shall forthvfith take all
steps necessary to put the Convention into O'oeration."
That language was changed and in an amended draft, completed February
2, 1919, and submitted to the commission, it read: (l5l)
"18... Each of the High Contracting Parties undertakes that
it will within the period of one year from the end of the
meeting of the Conference communicate its formal ratifica-
tion of the Convention to the Director, and will forthwith
take all steps necessary to "out the Convention into opera-
tion, unless such Convention is disap^oroved by its legis-
la,ture,^'
This language contemplates that after the Conference adopts a conven-
tion, every member of the International Labor Organization is bound (a)
formally to ratify the convention, (b) to connnunicate the ratification
to the Director, and (c) to t.ake all steps necessary to put the convention
into operation. The only way in v^hich those three obligations may be
nullified is by the legislature of the member disapT:roving the convention.
The members of the Commission in the course of the discussion of this
provision correctly described the pov^er of the legislature as a "veto po--er",
(149) Shotyell: The Origins of the International Labor Organization,
Vol,, 11, p. 149
(150) Sho-G\ell: Op.cit. Vol. I, pages 392-394
(151) Shotwell: Op.cit. Vol. I.^,pp. 392,4.
9361
i
-57-
That expression v;as used "by G-ompers, (152) "by Vandervelde of the Belgiexi
delegation, (153) Barnes of the British delegation, (154) and "by Baron Liaj'-or
des Plaiiches of the Italian delegation. (155)
The Italian delegation lorought in a resolution (l56) to the effect
that conventions adopted "by the Conference should have statutory effect
after the lapse of one year subject to a right of appeal to the Lea^gue of
Nations "but the resolution was not adopted.
In the course of the discussion Robinson pointed out (157) that the
President of the United States "could not engage his country vdthout
previous reference to the Senate", that the right of legislation "could not
be delegated to the executive power, even with the reservation of a right
of veto to Congress". G-ompers pointed out that "the 48 states retained all
the rights that were not expressly conferred on the federal power. ••"^at
use therefore would it be to agree to the text proposed if the Senate, or,
failing that, the Supreme Court subsequently declared it to be unconstitu-
tional?".
The ^erican delegates were willing to accept the proposed language
with the adc ition of the following paragraph;
"And, except v;here this undertaking is inconsistent with
the constitution or organic law of any of the High Con-
tracting Parties, and in such case, it shall be obligatory
on such High Contracting Party to use its utmost efforts
to bring about such legislation as shall give full effect to
any Convention so approved,"
The difficulties raised by the jtoerican delegates were summed up by
3elevinge of the British delegation as follows: (158)
"1* The reservation 'unless such Convention is disapproved
by its Legislature' imposed too strict an obligation on the
federal Executive.
2» In the United States labour legislation is a matter for
the individual States, and not for the Federal Legislature.
3. Any law passed by a State Legislature or by Congress
may be declared unconstitutional by the Supreme Court o"
In order to meet the objections of the American delegates Barnes of the
British delegation proposed an amendment on February 27, 1919 (159) to
eliminate the words "unless such convention is disap-oroved by its Legis-
lature" and instead to insert the words "unless the Convention fails to
obtain the consent of the National Authorities concerned" and to ado. the
(152) Shotwell: Op.cit: Vol, II, p. 158,
(153) Shotwell; Op.cit. Vol. II, p. 161.
(154) Shotwell: Op.cit. Vol. II, p. 176,
(155) Shotwell: Op.cit.. Vol. II, p. 180.
(156) Shotwell: Op.cit: Vol. II, p. 175.
(157) Shot^-ell: Op.cit. Vol. II, pp. 184,185.
(158) Shotwell: Op.cit. Vol. II, p. 186.
(159) Shotwell: Op.cit. Vol. II, p. 204.
9361
i
I
-53-
follov7ing paxagraph:
"In the case of a Federal State, if the power of the legislarr
tion on any matter dealt with in any Convention rests v/ith
the Legislatures of the Constituent States, the High Contract-
ing Party shall communiC'-i.te the Convention to the Constituent
States and each State may adhere separately to the Convention,
notification of the adhesion of any such State through the
Federal Government to the Director shall "be deemed to "be the
ratification of the Convention in respect of that State."
Robinson was not sa'^isfied v/ith that amendment. He stated the diffi-
culty as follows: (160)
"If a convention could not "be given effect to in the case of
the United States o\7ing to the fact that its signature "by the
Federal Government did not commit the Constituent States to
pass the necessary legislation, the country might find itself
in the impossible situation of "being held responsible for
faAling to carry out the Convention, although it was not its
fault that the Convention had not been carried out."
On February 23, 1919 Robinson stated the objections of the American
delegation to the xjrovision of Article 18 discussed herein, as follows: (l6l)
"(l) The Senate has the constitutional power and duty to
axivise and consent to treaties. To allow a foreign body to
make a treaty to bind the United States would be, in effect,
a delegation of the treaty-making power to the extent of the
provisions of the treaty.
(2) The Congress of the United States is the Legislative
Body of the United Jtates in such ma,tters as have been dele-
gated to it by the States of the Union, And, it is generally
underst'^od th&t the Police Power, as such, is not among the
powers granted to the Union, but among those reserved to the
States. Legislation required to give effect to a treaty would
need to be passed by the Congress as a whole, and it is for the
Congress to determine, notwithstanding the terms of the treaty,
whether it will or will not pass such legislation. Furthermore,
the Congress of the United States cannot be bound in advance
to pass such legislation, either affirmatively or negatively,
(3) In regard to the reserved powers, including therein the
so-called Police Powers, the States retain the right of legis-
lating for their citizens. Neither the executive nor the legis-
lative branch of the Federal Government can give any assurance
ttat any legislative action will be taken in any of the States.
(4) In ultimate resort the constitutionality of a treaty or
of an act of Congress may be tested in the Supreme Court of
tl:s United States, The legislation passed by a State Legisla-
ture may be tested in the State Courts and in the Supreme Court
of the United States, The legislation of Congress may be de-
clared unconstitutional by the federal judiciary, and that of
(150) Shotwell: Op.cit. Vol.11, p. 205
(161) Shotwell: Cp,cit. Vol.11, p. 210.
9361
•59-
the States "by the State judiciary or the federal judiciary,"
On February 28, 1919 Delevingne of the British delgation again sum-
marized the difficulties raised as regards the United States and -oroceeded to
explain how the British draft as amended met the objections; (l62)
"(a) The possibility that a law might be declared unconsti-
tutional by the Supreme Court.
(b) The possibility that the Stp.to Legislatures would not
pass the measures required to fulfill the obligations
assumed under an International Convention.
(c) Assuming that labour legislation belonged exclusively
to the separate States, the possibility that a law passed by
any Legislature might be modified by its successor.
The first point did not constitute a serious difficulty.
In order to meet the second point, the British Delegation
proposed to provide in general terms at the end of the fourth
paragraph that the consent required should be that of the
^national authorities'. If this wording was not suitable,
'the consent of the competent authorities' could be sub-
stituted.
Finally, to meet the third difficulty, the British Delegation
put forrjsrd a text which excressly maintained the rights of
the separate States, and so far as he could see no valid
criticism had been brought against this text. On the other
hand, the text proposed by Mr. Robinson had the disadvantage
that it imposed on the United States an obligation infinitely
less rigorous than that placed upon the other States..."
The British provision as amended was then adopted, (February 28, 1919)
only Gorapers and Robinson voting against it. The entire draft was adopted
on "second reading" on March 10, 1919, The provision in question became
Article 19 and read: (163)
"Each of the High Contracting Parties undertakes that it
will within the -oeriod of one year at most from the end
of the meeting of the Conference comm.unica.te its formal
ratification of the convention to the Director, and will
forthwith take all steps necessary to put the convention
into operation, unless such convention fails to obtain the
consent of the competent authorities.
In the case of a Federal State, if the power of legisla-
tion on any matters dealt v/ith in a convention rests with the
legislatures of the constituent States, the High Contra.cting
Party shall communicate the convention to the constituent
Sta.tes, and each such State may adhere separately to the
convention. Notification of the adhesion of any such
State through the Federal Government to the Director shall
be deemed to be the ratification of the convention in respect
of that State,"
(162) . Shotwell: Op.cit. Vol. II, p. 213.
(163) Shotwell: Op.cit. Vol. I, pp. 393, 395.
9361
-60-
RolDinson acted throughout the discussions on advice of Araericsjn con-
stitutional lawyers. He was certainly right in asserting that the United
States could not "bind itself in advance to consider conventions adopted "by
the International Lator Conference as "binding on the United States. He was
probably a]. so right in asserting that the Supreme Court had the power under
certain circumstances to declare unconstitutional, legislation passed in
pursuance of a treaty. But he was wrong in asserting that the treaty-making
power of the United States did not extend to the regulation of labor con-
ditions on the ground that labor conditions were within the police pov/er
of the States. (164)
Some of the British delegates were not sure that the American delegates
correctly stated the constitutional law of the United States. Phelan of
the British delegation contacted Felix Frankfurter and a number of other
layTyers who were then in Paris and "they were unanimously of the opinion
that the constitutional difficulties could be overcome", (l65) but they
were not overcome by the Commission adopting the British draft with Gompers
and Robinson voting against it.
By way of framing a r.roposal acceptable to the United States and eJLso to
other states James T. Shotwell, for the American delegation, drafted the
following three articles (166) for submission to the Commission:
Article 19
"When the Conference had decided on the adOTotion of proposals
with reference to an item on legislation for labor in the
Agenda, these proposals shall be embodied in the form of a
recommendation for suitable legislation, or other suitable
action.
Such recommendation shall forthwith be laid before the Con-
ference for consideration and decision. If on the final vote
the recommendation receives the support of two-thirds of the
votes cast by the delegates present, it shall be held to be
adopted by the Conference, and a copy of the recommendation,
authenticated by the signatures of the President of the Con-
ference and of the Director, shall be deposited with the
Secretary-General of the League of Nations. The Secretary-
General shall then communicate a certified copy of the recom-
mendation to each Power represented at the Conference for
(164) See Chapter III of this paper. That the American delegates in-
correctly represented the constitutional law of the U. S, at the
meetings of the Commission is also the conclusion of Francis G«
¥ilson, in International Labor Relations of Federal Governments,
10 Southwesterly Political and Social Science Quarterly (1929)
p, 19;*, Even before Missouri v. Holland, numerous decisions showed
to an impartial mind that the treaty power was not limited by the
powers reserved to the states. The case of Missouri v. HollaJid
(argued March 2, 1920, decided April 19, 1920) definitely announced
that doctrine,
(165) Shotwell: Op.cit. Vol. I, p. 155.
(166) Shotwell: Op. cit. Vol, II, pp. 262-3,
9361
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ap'oropriate legislation or other action necessnry to make
effective the provisions of such recommendation. There-
upon each of the High Contracting Parties will, within the
period of one year at most from the end of the meeting of
the Conference, "bring the recommendation before the national
authority or authorities within whose competence the matter
lies, for the enactment of such legislation or other action.
If, in the case of any High Contracting Party, no legislation
or other action necessary to make such recommendation effective
is taken, the pubraission of the recommendation for such action
shall end the obligation of such High Contracting Party."
Article 50
"The Conference may at any time by two-thirds vote of its
members cause any proposal it had adopted and recommended to
be embodied in a draft Convention. The Conference, after
consideration of any such draft Convention, may by a two-
thirds vote of the members of the Conference approve the
same, and any draft Convention so approved by the Conference
shall be authenticated, deposited, and communicated by the
Secretpry-G-eneral of the League of Nations as provided in
Article XIX to the High Contracting Parties as a draft
Convention ap'oroved by the General Conference, If any
one or more of the High Ct^ntracting Parties shall sign an.d
ratify a Convention which has been communicated as a draft
Convention approved by the Conference, the same shall be
deposited with the Ser^retary-General of the League of Nations,
and any subsequent adherence thereto of any one or more
of the other High Contracting Parties shall likewise be so
deposited.^'
Article 21
"Each High Contracting Party in due course will report to
the Secretary-General of the League of Nations any action
trken upon a recommendation of the General Conference
communicated to it,"
The Commission created a sub-committee to consider the American pro;oosalS:
The sub— committee consisted of three members of whom Robinson was one. On
March 19, 1919 Lelevingne as chairman of the sub-committee reported to the
Commission as follows: (167)
"I am desired by the Sub-Committee to report to the Commission
the repult of their labours. The Commission will remember
that th© United States Delegation on Monday brought up im-
portant proposals, the effect of which in brief was -
1» That the Labour Conference should have a discretion
to submit any proposals that it might adopt in the form of a
* recommendation' to the States which are parties to the Labour
(16?) Shotwell: Op.cit. Vol. II, pp. 361-363.
9361
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Organization instead of in the form of a draft Convention;
that the States should be under obligation to submit such
a recommendation to the competent authorities for legis-
lation or other action to give effect to it; and that the
action taken should be reported to the Secretary-G-eneral
of the League. Having fulfilled this obligation, the
State would not be subject to any further obligation, and
in particular, the provision as to sanctions would not
apply.
2. That in the case of a draft Convention being adopted by
the Labour Conference, no obligation was to be placed on
any State to submit the Convention to its .competent author-
ities - or to ratify the Convention in the event of its
being approved by the competent authorities - but if a State
did decide to 'ratify a Convention, the ratification was to
be deposited with the Secretary-G-eneral of the League...
These proposals were not acceptable to the Commission, and
the Sub-Committee were apTjOinted to find, if possible, some
compromise wnich would meet the .difficulties of the United
Statues and some other States and make it Dossible for them
to become parties to the Convention, while ^reserving the
substance of the scheme as already adopted by the Commission,
The Sub-Comrnittee after long consultations have agreed to
submit the new Articles XIX and XX T,fhich are before the
Commission. If these articles are accepted by the Commission,
all the American proposals to which I have referred are
withdrawn. The new articles would make two modifications
of importance, and o:0,y tvo, in the provisions of the scheme
as ap-oroved on the 'second reading'. The first modification
consists in giving the Conference the power, if it thinks
fit, to submit a recommendation to the States which are
parties to the Labour Organization, for submission to and
consideration by the competent authorities but without any
further obligation being placed on the Governments of the
States. On this point the Sub-Committee have adopted the
first of the United Sta.tes proposals.
The second modifics-tion provides that in the case of a
Federal State whose power to enter into Conventions on
labour matters is subject to limitations, the G-overnment of
the State may elect to tieat any draft Convention to which
such limitations ap"Dly as a recommendation only - and there-
u-Qon the provisions of the new Article XIX as to recommendations
shall apply.
To the first of these modifications we believe that no
serious objection will be taken by the Commission. The sub-
mission of a recommendation instead of a draft Convention
will be entirely in the discretion of the Conference, and
for myself, I am disposed to think that the power to do so
will be found to be advantageous and will promote the adoption
of labour legislation. It may well.be, in fact it is extremely
likely, that subjects will come before the Conference on which
owing to their complexity or the wide differences in the circum-
stances of the different States or other reasons, the Conference
9361
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nill find great difficulty in framing precise provisions
/for a Convention which shall "be of universal application.
Take, for instance, the question of unemployment. In
regard to such a matter, it is epsy to imagine that the framing
of a Convention apolicable to all countries, at any rate for
a long time to come, will "be an impossihility; "but the
Conference may well he able to lay down certain principles
in more or less detail, and submit them in the shape of
recommendations which the different Stp.tes may give effect
to, each in the way most suited to the local and national
conditions.
The second modification is of much greater importance
and is undoubtedly a serious change in the substance of
the scheme. In effect it places the United States, and any
other State which is in a similar position, on a different
footing from and under a less degree of obligation than other
States in regard to draJt Conventions adopted by the Con-
ference, The Commission, however, will observe two points
in connection with the drai"ting of this exception from the
general provisions of the scheme: first, that the exception
extends only to the Federal States which are subject to
limitations in respect of their treaty-making powers on
labour matters; second, that the exception extends only in
so far as these limitations apply, and no further.
A State will not be able to take advantage of the exception
on any ground except that of actual existing limitations
on its powers which prevent it entering into a labour Con-
vention. And a State in which such limitations exist will
only be able to claim the exception in regard to Conventions
to v/hich the limitations ap-oly. If a Convention is proposed
by the Conference to which the limitations do not apply and
which is within the competence of the Federal G-overnment,
then the general provisions of the scheme in regard to Con-
ventions will apply and the State will be under the same
obligations as any other State. Also, if in the course of
time the limitations are removed, those obligations will
automatically apply. . ."
The Labor Commission adopted the report of the sub-committee. The
Labor Commission reported to the Peace Conference: (168)
"The Commission spent a considerable amount of time in
attempting to devise a way out of this dilemma, and is
glad to be able to record that it ultimately succeeded in
doing so. Article 19 as now drafted represents a solution
found by a Sub-Commission consisting of representatives of
the American, British and Belgian Delegations specially
appointed to consider the question. It provides that the
decisions of the Labour Conference may take the form either
of recommendations or of draft conventions. Either must be
deposited with the Secretary-General of the LePgu.e of Nations
and each State undertakes to bring it within one year before
(168) Shotwell: Op.cit, Vol. II, p. 374
9361
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its competent authorities for the anactment of legisla-
tion or other action. If no legislation or other action
to make a recommendation effective follo\7s, or if a
draft convention fails to ohtain the consent of the
competent authorities concerned, no further obligation
will rest on the State in question. In the case of a
Federal State, however, whose power to enter into con-
ventions on labour matters is subject to limitations
its Government may treat a draft convention to which
such limitations apioly as a recommendation only.
The Commission felt that there might in any event
be instances in which the form of a recommendation
affirming a principle would be more suitable than that
of a draft convention, which must necessarily provido
for the detailed ap"plication of principles in a form
which would be generally applicable by every State
concerned. Subjects will probably come before the
Conference which owing to their complexity and the
wide differences in the circumstances of different
countries, will be incapable of being reduced to any
universal and uniform mode of application. In such
cases a convention might prove impossible, but a
recommendation of principles in more or less detail
which left the individual States freedom to apply them
in the manner best suited to their conditions would
undoubtedly have considerable value.
The exception in the case of Federal States is of
greater importance. Tt places th^ United States and
States v/hich are in a similar position under a less
degress of obligation than other States in regard to
draft conventions. But will be observed thr.t the
exception extends only to those Federal States which
are subject to limitations in respect of their treaty-
making powers on labour matters, and further that it
only extends in so far as those limitations apply in
any particular case. It will not apply in the case of
a convention to which the limitations do not apply,
or after any such limitations as may at present exist
ha,ve been removed. Though reluctant to contemplate an
arrangement under which all States would not be under
idential obligations, the Commission felt that it was
impossible not to recognize the constitutional diffi-
culties which undoubtedly existed in the case of
certain Federal States, and therefore proposed the
above solution as the best possible in the circum-
stances. "
The report of the Commission on the International Labor Organization
was aporoved at the plenary session of the peace Conference on April 11,
1919. (l69) In the course of th*^ discussion preceding the approval, Mr.
Barnes, a British delegate, speaking for the Commission said: (170 )
(169) Shotwell: Op. cit. Vol. II, p. 368.
(170) Shotv.rell: Op. cit. Vol. II, pp. 393-4.
9361
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"There are some states which have no authority to make
lalDor agreements in the form of treaties. There are
some States, such as the United States of JUnerica,
that embrace many competent authorities in the sense
in rhich the words are used in our document; and each
cf these competent authorities ha.s a right, and must
TDe left free to decide for itself. It was because
of this that we had to give the right to the Con-
ference - to impose an obligation upon the Conference
rather - to cast their finding in certain cases in
the form of a Recommendation instead of a Conven-
tion, and we also had to provide even if it were cast in
the form of a Convention, that it would still "be open
for a Federal State to adoDt it as a Recommendation
to put "before its own competent authorities and give
effect to it, if at all, in its own time and in its
own way. The net result of this - I want to "be per-
fectly candid ^^ith the Conference - the net result of
all this is, that a less degress of o"bligation falls
upon a Federal State than upon other States signatory
to our document. That is "bad; it is regrettable, "but,
as we found, unavoidable."
With this history as a background let us consider the meaning of
Article 405 of the Constitution of the International Labor Convention
as finally adopted. (See j). 55, supra.)- " What is the difference
between the procedure of a member state in the case of a recommendation
as distinguished from a case of a draft convention adopted by the Inter-
national Labor Conference?
A recommendation is "submitted to the Members for consideration
v;ith a view to effect being given to it by national legislation or
otherwise". Article 405 (l). Accordingly each members is bound to
"bring the recommendation, , .before the authority or authorities within
whose competence the matter lies, for the enactment of legislation or
other action". Article 405 (5), "If on a recommendation no legislative
or other action is taken to make a recommendation effective. . .no further
obligation shall rest uoon the Member", Article 4f^5 (8), Each member
is bound to "inform the Secretary-General of the action taken". Article
405 (6), Since the recommendations do not involve the treaty-making
power of a state and involve only its legislative power, the "authorities
within whose competence the matter lies" are clearly the legislative
bodies. There is no difference in dealing with a recommendation by a
unitary state, a federal state whose power to enter into conventions on
labor matters is subject to limitations, or a federal state whose power is
not so limited. In the "United States a recommendation dealing with work-
ing conditions in a field assigned to Congress, for instpnue, working
conditions of seamen, will have to be submitted to Congress; recommenda-
tions dealing v;ith working conditions in a, field reserved to th*; States
will have to be submitted to the legislatures of the Sta.tes. Congress as
well as the legislatures are free to pass or not to pass legislation in
accordance with the recommendation.
9361
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A draft convention is to "be treated in one way by a -unitary state or a
federal sto.te the power of vfhich to enter into conventions on labor natters is
not subject to limitations and in a different way by a federal state whose
power to enter into labor conventions is limited,
(a) In the case of a "unitary state or a federal state whose poorer is not
limited, the state is boiond to "brin^ the... draft convention before the author-
ity or authorities within whose comrjetence the matter lies, for the enactment
of legislation or other action", Ai'ticle 405 (5).
Superficial consideration of this sentence might lead to the belief that
it contemplates the enactment of legislation as the step to follow the sub«.
mission of a draft convention to the competent authorities. This is not so.
Though legislation was contemplated to follow the ratification of a draft
convention, such legislation has been provided for in the language of Article
405 (7) which binds a member, after the ratification of the convention, to
"talce such action as may be necessary to make effective the provisions of such
convention". In general, the successive steps contemplated in connection vdth
a draft convention are these: A draft convention is brought before the com-
petent authorities. It may or may not obtain their consent. If it does it is
ratified, Pormal ratification is communicated to the Secretary-General and
finally such action is taken as may be necessary to make effective the provi-
sions of the convention.
What then is the meaning of the provision in Article 405 (5) that a draft
convention is to be brou<-^ht before the competent authorities "for the enact-
ment of legislation or other action"? The phrase "for the enactment of legis-
lation" does not at all refer t: draft conventions. It refers only to rec-
oranendations were contemplated to call for legislation as the next step
follov/-ing their submission to competent authorities. The phrase is taken
from Article 19 of the American proposal (p, 60, supra) which dealt with
recom:iendations only and provided that recommendations be communicated to the
member states "for appropriate legislation or other action necessary to naire
effective the provisions of such recommendation". Wo mention was made of
"ena.ctnent of legislation" following the submission of a draft convention,
either in Article 20 of the American proposal or in Article 18 of the British
draft of February 2, 1919 or in Article 19 as amended Febr-uary 28, 1919,
(piD. 95-96, 87, 93, supra),
Furthermore according to Article 405 (l) a recom:nendation is "to be sub-
mitted to the members for consideration v;ith a view to effect being ■i;iven to it
by national legislation or otherwise", while a convention is to be submitted
"for ratification by the Members". Finally, in the French translation of
Article 405 (5) the words "for the enactment of legislation" are translated
"en vue de la transformer en loi", "la" referring to "la recommendation" and
not to "le projet de convention". If "enactment of legislation" referred to
both, recommendations and draft conventions, the translation would have been
"les'\ Purs-'iant to Article 440 of the Treaty of Versailles the French and the
9361
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English texts are equally authentic. (I7l)
All of the above shous that "for the enactment of legislation" does not
refer to draft conventions. The obscurity was created by the circumstances
under vrhich the duty wo.s imposed on the members to submit draft conventions
to their competent authorities. It will be recalled that one criticism of
the Ai'nerican proposals was that it did not impose a duty on a member state to
present draft conventions to its competent authorities. This was stated by
Delevigne in his report on behalf of the subcomniittee, (172) and has been ex-
pressed by Barnes on March 17, 1919. (173) To meet that criticism the Ameri-
can delegation apparently agreed, probably in the subcommittee, that a duty
be imposed to present not only recommendations but also draft conventions to
the competent authorities. That intention was expressed by inserting "draft
convention" in the paragraph which imposed the duty with reference to recom-
mendations. This does not mean however that the steps following submission
are the same in both cases or that the authorities to v/hom submission is to
be made are necessarily the same.
That brings us to the question as to who are the competent authorities
before whom a. draft convention is to be brought pursuant to Article 405 (5).
Let us recall that according to the report of Delevigne (174) for the subcom-
mittee which report was c.pproved 'oj Robinson (175)
"The new articles (that is the language which is now Article 405)
would make two modifications of importance, and only two, in the
provisions of the scheme as approved on 'second reading'."
Those modifications were (a) the new concept of recommendations and (b) the
privilege of a federal state to consider a convention as a recommendation.
The scheme as approved on second reading v/as the British draft adopted on
March 10, 1919. That draft and the preceding British drafts showed an in-
tention to have the legislatures of the member states committed to a conven-
tion prior to the time that its ratification is communicated to the Secretar;^'--
G-eneral so that there might be no difficulties about legislation to make the
convention effective. It was clearly the intention of the Commission to have
conventions not only entered into but enforced. Hence the competent authori-
ties the Commission had in mind seem clearly to have been those authorities
within whose power it was to enact legislation to give effect to conventions.
In the United States the authorities competent to enact legislation to
give effect to a treaty are either Congress alone, as discussed in Chapter
III of this paper, or the legislatures of the 48 states in conjunction with
Congress, all acting as usual within the spheres assigned to them by the
Constitution. To try to obtain consent of those 49 bodies would mean to
foreclose the possibility of any convention ever becoming effective in this
country. Therefore, consent of Congress alone should be sought.
(171) The pertinent part of Article 405 sub-div. 5 is translated as follows:
"Chacun des Membres s'engage a soumettre. . .la recommendation ou le
projet de convention a I'autorite ou aux autorites dans la competence
desquelles rentre la maticre, en vue de la transformer en loi ou de
prendre des mesures d'un autre ordre."
(172) Shotwell: Op. cit. Vol. II, p. 361.
(173) Shotwell: Op. cit. Vol. II, p. 269.
(174) Shotwell: ap. cit. Vol. II, p. 362.
(175) Shotwell: Op. cit. Vol. II, p. 285.
9361
i
"68-
Apart from that, conventions sho-uld "be submitted to the Senate in order to
obtain a two-thirds majority required for a treaty, and if both Congress and
the Senate aiiprove of the convention it may be ratified by the President and
ratification communicated to the Secretary-General of the League of Nations,
The next step would be, in accordance ^lith Article 405 (?) to "take such
action as nay be necessary to make effective the provisions of such convention".
Theoreticallj^ the United States government has a choice of alternatives in an
attempt to live up to the international obligations as expressed in a ratified
convention: The governm.ent may request Congress and the 48 legisla-tures to
enact laws to give effect to the convention vdthin their usual spheres, or it
may ask Congress alone to pass the necessary legislation. Proceeding by way
of the first alternative will hardly make effective the provisions of a con-
vention. With a view to the realities of the situation and in order to comply
with the requirement to do v;hat nay be "necessary to make effective the pro-
visions of such convention", the government should choose the second alterna/-
tive, to ask Congress alone to nass legislation in order to make the treaty
effective.
(b) In the case of a federal state "the power of which to enter into
conventions on labor matters is subject to limitations", according to Article
405 (9) the state may tr^at a draft convention as a recommendation only. It
will be useful to consider what limitations are included in that language.
The entire discussion preceding the adoption of Article 405 shows tha.t the
limitations in the mind of all participants were limitations on a federal gov-
ernment due to the fact that the constitution may assign the regulation of
labor natters to other governmental units within the federal state, for
instance, to States in the United States or to Provinces in Canada. Ho other
limitations were mentioned in the course of the discussion. It is of interest,
however, to note that on March 19, 1919, (176) Robinson while approving the
report of Delevingne and thereby the present language of Article 405 said;
"As I listened to Sir Malcolm's statement I received the impression that
he has told, you that that word 'limitations' meant only constitutional limita-
tions, I want to say that it includes other limitations such as judicial, and
with that statement the American Delegation is prepared to accept this article'.
There is no difference between a constitutional limitation and a judicial
limitation. The Justices of the Supreme Court construe the powers of the
federal government as they are laid down in the Constitution. That is the
legal theory and one cannot depart from it in the course of a strictly legal
argument. It may be that Robinson had in mind limitations of due process but
they are just another kind of constitutional limitations.
ITlien a federal state is limited as described in Article 405 (9) it may
treat a draft convention as a recom.mendation only. If the view presented by
the American delegation as to the extent of the treaty power were correct the
procedure would be to send a draft convention to the 48 legislatures and to
Congress for such action as they may choose to take thereon. There v:ou.ld be
no need to present the draft convention to the Senate for ratification and
there wou].d be no need to try to obtain the consent of the competent authori-
ties. This, however, is not the case. The power of the United States govern-
(176) Shotwell: op.cit. Vol. II, p. 285.
9361
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-69-
ment to enter into conventions on la.bor matters is not subject to limitations
due to its being a federal government and therefore, the United States cannot
avail itself of the privilege expressed in Article 405 (9) to treat a djrrft
convention as a recommendation only.
The limitations intended were probably only those due to the federal form
of government of a member state. If it should be assumed that "limitations"
includes all limitations, for instance, limitations because of the due process
clause, then the United States government v/ould be justified in treating at
this time all child labor conventions as recommendations only, in vieu of the
case of Ac"I':ins v. Children's Hospital, (177)
To suj.imarize, it is suggested that labor conventions adoiDted bj?- the In-
ternational Labor Conferences should be handled as follows: If after an ex-
amination by experts familiar v/ith the field they are found to be so phra.sed
as to be applicable to conditions in this coimtry they should be submitted to
the Senate for its advice and consent, and also to the House of Representa^
tives. If tuo-thirds of the Senators approve a convention and if the House
does too, then the convention may be ratified by the President, The fact of
ratification is communicated to the Se ere tarj^- General of the League of Nations
and thereupon Congress passes laws to give effect to the convention.
This interpretation of the provisions of Article 405 of the Constitution
of the International Labor Organization appears to be fully in accord uith
the views of Manley 0. Hudson. (17.5)
B, C0r/E1\!TI0NS AECPTED BY THE INTERNATIONAL LABOR
OHGAJ.'IZATION PRIOR TO THE UNITED STA'TES BECOMING
A MEMBER THE5 .^OF AND THOSE ADOPTED LATER.
The United States officially participated in the proceedings of the Con-
ference of the International Labor Organization in Jujie, 1935. As to the con-
ventions then adopted, the United States is under dut^T" to submit then to the
competent authorities for action. As to those previously adopted, the United
States is imder no duty whatever but it may adhere to them as a member of the
International Labor Organization,
C, ADVISABILITY OE FA.TIEYING CONVENTIONS DRAFTED
BY THE INTERNATIONAL LABOR ORGANIZATION.
As long as there is no constitutional amendment covering the matter, the
trea.ty-v.iaking power of the federal government is the strongest weapon that can
be used to regulate labor conditions uniformly throughout the entire country.
The power is old but its exercise in the field of labor conditions would be
new. In order to get the Congress and the people accustomed to the idea, it
is advisable on principle, to ratify International Labor Organization Conven-
tions even though they would merely act as stabilizers and would not improve
labor conditions in this country at the present time. This would be the case,
for instance, with convention No. 49 limiting the hours of labor in glass-
bottle works to 42 a week. But before finally deciding on whether or not
(177) Note 130, supra.
(178) Manley 0. Hudson, Membership of the United States in the International
Labor Organization, 28 American Journal of International Law 669 (1934).
9361
-70-
ratificr^tion of conventions should be favored, each convention shotild he
examined ':.lth a viev/ to determining i,7hether or not it is applicable to
American c onditions. It is said that convention No. 46, for e-:anple,
adopted in Jime 1935 uses technical terms for describing varieties of
coal nhich terras seem to differ from those used in this country. As the
convention stands now it is possible that its application in this coun-
try uould cause confusion and mir2ht discredit the idea of ratifying labor
conventions. It is something tlia.t people with technical knowledge might
well look into,
No^.: let us consider the conventions adopted in June, 1935, as well
as those adopted previously, in their regular order. All remarks mad.e
here are subject to correction by persons who have expert knowledge of
the subject matter of each particular convention.
1, Convention adopted in June, 1935;
Convention No. 45 "concerning the emplojnnent of women on underground
work in mines of all kinds^. The convention prhhibits such emplo^nnent
but leaves power in national legislatures to make certain exce':itions.
It appears that there are ver^'- few women ?jorking in mines in this coun-
try so that the convention if ratified would not accomplish much of
imraediate value. However, it is thought that it should be ratified for
the 23urpose of showing the solidarity of this country vith all other
members of the International Labor Organization and also because condi-
tions nay chD.n^'e and economic development may press women into work in
mines. ,
Convention No. 46 "limitir ; hours of \7ork in coal mines'' has been
referred to on the preceding page.
Convention No. 47 af i irms the principle of a 4C-hour week and leaves
it to fut"ure conventions to applj- the princiijle "to classes of employ-
ment in accordance with the detailed provisions to be prescribed '^oy
separate Conventions". This convention -;ight '-rell be ratified but it
should not be followed b"^" legisla.tion. The convention is merely a de-
claration of a principle and though it uses the word "undertakes", all
that each nation undertakes to do is "to ap-oly this Drinciple (of the
40-hour \7eek) to classes of employment in accordance with detailed pro-.
visions to be prescribed by such separate Conventions as are ratified
by that Me.mber", This is an agreement to agree. Since the treaty power
is caviled upon to perform a rather difficult task, that is, to override
the reservation of powers to the States, the treaty should be e, clearly
binding document and if it is merely an agreement to agree it is sub-
mitted that the Supreme Court will not recognize it as a treaty which
can support legislation overriding powers reserved to the States,
Convention No, 48 concerning the establishment of an international
scbene for the maintenance of rights under invalidity, old age, and
widov;s and orphans insurance. This convention does not seem to be ap—
plica,ble to j^erican conditions because social insurance is in its early
infancy in this country.
Convention No, 49 concerns the reduction of hours of i7ork in gla^ss-
bottle \-orks to 42 per week and 8 hours for each "spell of work". These
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hours are, it is -understood, actually in force in this co-uoitry at the present
time "but this should not militate against the ratification of the convention.
It should no doubt he ratified,
2. Conventions adopted prior to June, 1935;
(a) Hours of Work;
Convention No. 1 fixes the 8-hour day and the 48-ho^ar week as the maximum
in "industrial undertakings". The term "industrial undertakings" includes
particuJ.arly;
"(a) l.Iines, quarries, and other works for the e-:traction of minerals from
the earth.
(h) Industries in v/hich articles are manuf s.ctured, altered, cleaned., re-
paired, ornamented, finished, adapted for sale; "broken up or de-
molished, or in T7hich materials are transformed; includinf^- shipbuild-
ing and the generation, transformation, and transmission of electri-
city'' or motive power of any kind.
(c) Construction, reconstruction, maintenance, repair, alteration, or
demolition of any building, railwa.y, tramway, harbour, dock, pier,
canal, inland v/aterney, road, tunnel, bridge, viaduct^, sojer, '.-/aiii, "well
tt "■ f;^;:;?phiG o. te"'e 'r-jne i:i^t ''".:,ti''n, eT ^c t/ical und:? ■■:,-' dii-'^T, ■.ss
^.7ork, waterv'ork or other work of construction, as well as the prep-
aration for or laying the foundations of any such work or structure.
(d) Transport of passengei j or goods by road, rail, sea or inland water-
vray, including the handling of goods at docks, quays, wharves or
warehouses, but excluding waterways.
The competent authority in each country shall define the line of
division which separates industry from commerce and agriculture*''
Exce')tions are made in numerous cases and apart from that excer)tions are made
for co"antries as a whole, foi instance, for Japan and British India, China,
Persia and Siam, Canada ratified that convention in 1935 and passed federal
legislation to give effect to the convention, (179) It is submitted that it
should be ratified by the United States.
Convention No. 14 which provides for a period of rest comprising at least
24 consecutive hours in every period of seven days in industrial undertal:ings
should be ratified. It was ratified by Canada in 1935 and was made effective
by a statute, (180) - (200)
Convention No, 20 prohibits the "making of break, pastry or other flour
confectionary during the night". It does not aiopear what the situation is with
reference to the prohibition of night work in bakeries by state legislatures,
(179) Statutes of Canada, 1935, ch.63,
(180)~ (200) Statutes of Canada, 1335, ch.l4.
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Tho-u,<3>ii there may be such statutes there are not nan;,- of them. It is sug;:;ested
that the convention should "be ratified.
Convention No, 30, which, with many exceptions, fixes a maximum G-hour
day ?jid 4-8~hour week for work "in commerce and offices", should he ratified*
Office ^-.'orkers are not organized and need le/^.l protection.
Convention No. 41 forbids ni--;ht v/ork of women in industrial undertakings;
it is submitted that it should be ratified.
Convention No. 43 fixes a maximum 42-hour week and 8-hour spell, \,dth
exce]otions, in sheet glass v;orks. The ?lat Glass i/Ianufacturing Code, approved
December 22, 1934, under the N.R.A. , fixed as the maximum 72 hours in 14 days,
which corresponds to about 56 h:i-'ars in a week, "k/hat the act"ija,l work hours are
at the present time is not known. This Convention, no doubt, should be rati-
fied,
(b) Child Labor;
Conventions Nos, 5 and 33 fix the minimum age for entry of children into
emplojTnent in industrial undertakings and in non-industrial undertakings,
respectively, at 14 years, with many exceptions. Exceptions are also made
for vjhole countries like Japan and India, It is suggested that the conven-
tions should be ratified. They do not refer to agriculture or to emplo^-ment
Sib sea,
(c) Labor conditions of seamen;
Several conventions regulate labor conditions of seamen. Convention No,
7 fixes the minimum age for admission of children for employment at sea. as 14
years, ".Ith exceptions. Convention No, 8 provides for the payment of un-
emplo;;,nnent indemnity to a seaman in case of loss or foundering of the ship on
which he \7as employed. Convention No. 9 provides for establishing facilities
for finding emiDloyment for seamen. Convention No. 15 provides for fixing the
minimum age for the admission of young persons for errolojinent as trimmers or
stokers as 18 years, vfith exceptions. Convention No, 16 concerns the comoul-
sory medical examination of children and young persons employed at sea. Con-
vention No, 22 concerns seamen^ s articles of agreement. Convention No, 23
concerns the repatriation of seamen. Convention No. 27 lorovides for narking
of the weight on heavy packages transported loiy vessels. Convention No, 32
concerns the protection against accidents of workers employed in loa.ding or
unloa.ding ships.
All those conventions appear to be a proper subject for ratification,
provided they are approved by ex^oerts in the field,
(d) Protection of women;
Convention No, 3 concerns the employment of women in industrial under-
takings before and after childbirth. Convention No, 41 prohibits the employ-
ment of women in industrial undertakings during the night, with exceptions.
They ought no doubt to be ratified.
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(e) Agriculture;
Convention No. 110 concerns the ac-^e for admission of children for enroloy-
raent in agriculture. Children under 14 years of a^^^e may he employee, only out-
side of the hours fixed for school attendance.
Convention No. 11 undertakes to secure to aj-r i cul tur al ^rorkers the ri^^its
of association and combination.
The latter convention would he of help to the Southern Tenant Earners ^
Union and to other agricultural v/orkers' unions. Both conventions should,
it is submitted he ratified.
(f) Social insurance;
Convention No. 24 concerns sickness insurance for ^-orkers in industry and
com:.ierce and domestic servants. Convention No, 25 concerns sickness insurance
for a-:,Ticultural workers. Convention No. ^5 concerns com;oulsory old a^e in-
surance for persons employed in industrial or commercial undertakinr;s, in the
liberal "orofessions, and for out^-'orkers and domestic servejits. Convention
No, 36 concerns com-oulsory old a:;;:e insurance for persons employed in agricul-
tural Lindert airings. Convention No, 37 concerns compulsory invalidity insur-
ance for persons em-oloyed in industrial or commercial undertakings, in the
libera.l -orofessions, end for out\:'orkers and domestic servants. Convention No.
38 concerns compulsory invalidity insurance for persons employed in agricul-
tural under tailings. Convention No, 59 concerns compulsory widows' and or-
phans^ insurance for persons employed in industrial or commercial undertakings,
in the liberal -orofessions, and for outv.'orkers and domestic servants. Con-
vention No. 40 concerns compulsory ridows' and orohans' insurance for persons
em"oloyed in agricultural undertakings.
It is understood that tne vrious kinc s of insurance nhich form the sub-
ject of those conventions are developed in this country to an insignificant
extent. Consequently ratification of those conventions would sooner or later
force the federal government to set up nation-vxide systems for all those
types of insurance. It is believed, however, that they should be ratified
and that after ratification the States should first be given an o;oportunity
to set up their o\7n systems. The e^rperience gained by those State systems
will perharos show the essential features of a system that is best adapted to
the country as a whole,
(g) Unemployment ;
Convention No, 2 provides for the establishment of a system of free iDub-
lic emplo^rment agencies under the control of a central authority. Convention
No, 44 provides for insuring benefits or allowances to the involuntarily un-
employed. It is believed they shou3.d be ratified,
(h) Forced labor;
Convention No. 29 concerns forced or compulsory labor. Enough is not
kno\7n about this matter to say anything on the subject beyond general a,p",rov-
al of the principle therein enimciated that forced labor shall not be imposed
for the benefit of private individuals, com;oanies or associations,
9361
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(i) ?ee charjg;in^ employment ag;encies;
Convention No, 34 o.'bolishes such agencies, v/hen conducted for profit,
within three years after ratification of convention, Exceptions are -orovided
for. It is "believed it should "be ratified
(j) i:;-ii.g:rants;
Convention No, 21 concerns the simiol if i cation of the inspection of
emigrc.nts on "board shir). This aopears to "orovide for a sound principle, to-
wit: thr.t the official inspection carried out on "board an emigrant vessel
for the protection of emigrants shall "be undertaken 'by not more thr.n one :-:ov-
ernment. It should "be ratified.
It is repeated that the final decision of ^.-'hether or not a particular con-
vention should "be ratified depenr s on a thorough technical study of the su'b-
ject-uatter involved.
D. Summary of Arguments For and Against Ratification
of Conventions of the International Lahor Organization.
Argvjnents pro:
1, Uniformity of effect. Whatever can be validly regulated "by
a convention will "be "binding throughout the country as a vrhale.
2, Cooperrticn of entire legislative vdth executive departments
of Government, As appears from Chapter YI of this report,
labor conventions of the International Labor Organization are
so drafted that they i/7ill require legislation before they can
become effective. Apart from that, the Constitution of the
International L^bor Organization calls for consent of the con—
petent legisl8,tive authorities before ratification of a con~-
vent ion m^ay be coraiaunicated to the International Labor Organiza-
tion, Therefore, it ^.'ill not be sufficient for the Senate and
the President to ratify a convention; a citizen of this country
vill not be affected until the competent legislative authori-
ties give t"heir consent to the ratification and, in addition,
after ratification, "oass laws to give e.-'fect to the convention.
That will remove fears of some people t'nrt the Senate sjid the
President might put something over on the country against the
wishes of the people.
3, Duty to set up standards while delegating power will continue.
If we look at the theory of separation of powers as protection
to the citizen, when Congress leaves rule-making and adiainis—
trcation to a subordinate body, Congress has to set up proper
standards in connection ^dth that delegation of power as in
the case of any ordinary legislation.
4, International Labor Conventions, to ^diich about 60 nr.tions
are potential signatories, tend to raise the standard of liv-
ing of workers in all the 60 countries. Low standards of
living of workers in other countries tend to lower the stand-
ards in this country because of international-'compe tition,
9361
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-75-
5. The International Lator Organization includes countries uliich
are not members of the Lea^e of Nations; hence the fate of the
LeaiTiie is not necessarily the fate of the International Laoor
Organization.
6, llany of the conventions will mean an actual improvement in the
lahor standards. Those that will immediately act as st^.bilizers
will have the advanta.'-'e of "•jiOviding against attempts to lov:er
lahor standards.
Arguments contra:
1, Dislike of foreign entanglements. The answer to that argument
is that this is an interdenendent world and low standards of
lahor in one country tend to depress standards in every other
country that competes in world markets,
2. There is a possihility of a complaint bv another State against
the United States coming ultimately before the permanent Court
of International Justice. If one member complains thr.t another
member fails to live up to its obligations, a Commission of
Enquiry mssy be organized to investigate the matter and nal^e
recommendations. Tlie dissatisfied member may refer the matter
to the Permanent Court of International Justice, "The Pei-^.an-
ent Court of International Justice ma3- affirm, vary, or reverse
any of the findings or recomnendations of the Commission of
Enquiry, if any, and shall in its decision indicate the measures,
if any, of an economic character vrj.:.ich it considers to be ap-
propriate, and which other govermaents v/ould be justified in
adopting against a defaulting government (Article 418), In the
event of any Member failing to cany out ^-ithin the tine speci-
fied the recommendations, if any, contained in the re-oort of the
Commission of Enouiry, or in the decision of the Permanent Court
of International Justice, as the case may be, any other lleiiber
may take against that Member the measures of an economic clia.rac-
ter indicated in the report of the Commission or in the decision
of the Court as arapropriate to the case (Article 419)," The
answer to that objection is that this country has already ac-
quiesced in that -oossibility by becoming a member of the Inter-
national Labor Or -^avnization. Obviously it did not becone a,
member just to pa^r dues or to attend conferences. It beca.ne a
member i-ith the idea that some of the conventions lit.ht a.t some
time be ratified Idj the United States and 'dth that there
necessarily goes the possibility of a dispute comin;^^ before that
Court. I am informed by the International Labor office in Wa.sh-
ington, D, C, , that no complaint of that kind has ever been made
by any member of the International Labor Organization against
another member.
9361
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CHAFTER VIII.
Cli'iA-DIAi: CONSTITUTIONAL PROBI^US IN COmiECTIOlI TJITH RATIFICATION
OF CONVENTIONS OF THE INTERNATIONAL LASOR OxiGiUilZATION. C OLEPARI SON
171 TK PROBLEMS IN TlIE UNITED STATES.
The jDosition of the Dominion of Canada has greatly changed since the
World War. Its autonomy within the British Empire increased and so did the
degree of its independence in international dealings. The new status of the
Dominion of Crjiada found expression i?i the Statu.te of Westminster, IQCl, (201)
which -provided that "The Crovrn is the sj^iibol of the free association of the
members of the British Commonwealth of Nations" ojid that "No Act of Parlia-
ment of the United Kingdom passed after the coranencement of this Act shc?,ll
extend, or he deemed to extend, to a Dominion as part of the law of that
Dominion, unless it is expressly declared in that Act that that Dominion has
requested, and consented to the enactment thereof."
The sole v/ritten constitutional provision bearing on Canadian, treaties is
Section 132 oi the British North America Act, 1867, (202) which reads as
follows:
"The Parliament and Government of Canada shall have all Powers
necessarj'' or proper for performing the Obligations of Canada or any
Province thereof, as Part of the British Erapire, towards Foreign Coi^Ji-
tries arising under Treaties between the Srroire and such Foreign
Countries."
In practice there have developed several forins of treaties binding on
Canada internationally. A recent writer lists them as follows: (203)
"1. International obligations uorj be imposed on Ca.nada ''oir trea.ties
made in the name of the British Erapire but to which other parts of the
Empire are also signatories...
2. Obligations mcay now be imposed upon Canada by treaties negotia-
ted by Canadian Plenipotentisxies under full powers issued ''oy
His Majesty, and made by His I.Iajesty 'in respect of the Domin-
ion of Cano-da' and ratified ^ij His Majesty under the Great
Seal of the Realm at the instance of the Canadian Goverixnent
after the approval, thereof by Parliament has been secured...
3. International obligations may be imposed on Cann,da by treaties
made in the name of His Majesty but to \7hich Canada is a signa-
tory by a Plenipotentiary authorized to sign 'for' Canada....
(201) Statutes of Canada, 1932, pp. V-VIII.
(202) Revised Statutes of Canada, 1927, vol. V. p. 4444.
(203) Vincent C. MacDonald: Canada* s Power to Perform Treaty Obligations,
The Canadian Bar Review, vol. 11, p. 581. at pp. 590-592 (Nov. 1935)
9361
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4. Intcrnr.tional obligationr, m:\y be inoosed on Canada by a treat"'-
made bj- His I.iajosty on the advise of his Iiroerial i.iinisterc raid
to which Canada is not a formal or consenting party,,,"
The provision of the United States Constitution is that the President
"shall have Power, oy ©jid with the Advice and Consent of the Senate, to nslze
Treaties, provided two thirds of the Senators orescnt concur," Tiie :)rere-
quisities of a treaty becoming bindin>^ on Canada and on the United States are
so different that there is no basis for any attempt to draw lessons for the
United States from Canadian "oroceduro.
After a treaty is formally entered into there is still a question of due
process in this country (see Chapter V of this paper) but there is no such
question in Canada because there is no requirenent of due orocess as a limita-
tion on the treaty-making power in Canada.
Ihere is a Canadian problem however that is similar to a problem in this
country. The problem relates, to the -"oower of the Dominion. Parliament to pass
legislation 'o" way of giving effect to a treaty v;here such legislation and
treat3' concern matters ordinarily vdthin the jurisdiction of the Provinces.
The "oowers of the Dominion Parliq,ment as against the power of Provincial
Legisla.tures are outlined in sections 91 a.nd 92 of the British ITorth A':crica
Act, 1867, which read as follows: (204)
"VI. DISTRi:3UTI0II OF LSaiSLATIVE PO^RS.
Powers of the Parliament.
91 Lefjisla^ive Authority of Parlia.nent of Cana.da.
If shall be "".o-v/ful for the Queen, "by and with the Advice and Consent
of the Senate and House of Cor.i'.ions, to ma2:e Laws for the Peace, Order,
ajid good Government of CaJiad^a, in rela,tion to all Matters not coming
within the Classes of Subjects b" this Act a.ssigned exclusively to the
Legislatures of the Provinces, and for greater Certainty, but not so as
to restrict the Generality of the foregoiiig Terms of this Section, it is
herebj- declared that ( no tv/ith standing anything in this Act) the exclusive
Legislative Authority of the ?o.rliauent of Canada extends to all l.Iatters
coning v/ithin the Classes of Subjects next hereinafter enijjnerated; that
is to sa.3^, -
1. Tl'ie Public Debt and Property.
2. Tiie Regulation of Trade and Commerce
o» The raising of I-ioney by any i.Iode or System of Ta::ation.
4» The borrowing of Money on the Public Credit.
5. Postal Service.
6. The Census and Statistics.
7. liilitia, I.iilitary and ilaval Service, and Defense,
C. The fixing of and providing for the Salaries and Allowances of
Civil and other Officers of the Government of Canada..
9. Beacons, Buoys, lighthouses, and Sable Island.
10. xTavigation and Shipping,
11. Quarantine and the Establishment and Maintenance of Marine
Hospitals.
(204) Revised Statutes of Canada 1927, vol. 7, p. 4435-7.
9361
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12. Sea Coast sjic. Inland Fisheries,
lo« Ferries between a Province and any Z3ritish or Foreign Coraitr^-
or between Two Provinces.
14. Currency sjid Coinage,
15 • Ranking, Incorporation of Banlcs, and the Issue of Paper l.Ioney.
16. Savings Banks.
17. 'Joights rnd Measures.
18. Bills of Exchange and Pronissory llotes.
19. Interests.
20. Legal Tender.
21. Bankruptcy and Insolvency.
22. Patents of Invention and Discovery.
25» Copyrights.
24* Indians, and Lands reserved for the Indians.
25. Naturalization and Aliens.
26. I.Iarriage and Divorce.
27. Tlie Criminal Lav;, except the Constitution of Courts of Ciriidnal
Jurisdiction, but including the Procediore in Criminal Matters.
28. The Establishment, i.ic?dntenancc , ojid Hanagement of Penitentiaries.
29. Such Classes of Subjects as are ex^oressly excepted in the Enu-
meration of the Classes of Subjects ''oy this Act assigned e::-
clusively to the Legislatures of the Provinces.
And ajiy l.Latter coming v/ithin any of the Classes of Subjects enui.ierated in
this Section shall not be deemed to come within the Class of Hatters of a. locaJ
or -orivate ITp.ture coranrised in the Enumeration of the Cla.sses of Su.bjects bj-
this Act assigned exclusively to the Legislatures of the Provinces,
Exclusive Po'.vers of Provincial Legislatures,
92. Subjects of Exclusive Provincial Legislation.
In each Province the Legislature may exclusively make Laws in relation
to Hatters coming v/ithin the Classes of Subjects next hereinafter enmnerated;
that is to sa^y, -
1, The Amendment from Tine to Tiiue, no tvfiths tending any thin:;; in
this Act, of the Constitution of the Province, except as regrxds
the Office of Lieutenant-Governor,
2, Direct Taxation within the Province in order to the ife.isixg of
a Revenue for Provincial Fj-r",50ses,
5, The borrov/ing of Loney on the sole Credit of the Province.
4, The Establishment ana Tenure of Provincial Offices pjid the
Appointment and Payment of Provincial Officers.
5, Tiie Management and Sale of the Public Laiids belonging to the
Province and of the Timber enC. TTood thereon.
6, The Establishment, Mrintenance, pjid U^-nagement of Public and
?Leforraatory Prisons in .and for the Province,
7, The Establishment, Maintenance, and Management of Hospitals,
Asylums, Charities, and Eleemosynary Institutions in and for
the Province, other than Marine Hospitals*
3, Municipal Institutions in the Province.
9. Shop, Saloon, Tavern, Auctioneer, and other Licenses in order
to the raising of a Revenue for Provincial, Local, or M.imicipal
Purposes,
10, Local Works and Undertakings other than such as are of the fol-
_.^„^ lowing Classes: -
(a) Lines of Steam or other Ships, Railways, Canals, Telegraphs,
and other Works and Undertak:in;;-;s connecting the Province uith
any other or others of the Province, or extending "beyonc". the
Limits of the Province:
(h) Lines of Steam Ships hetv/een the Province and any British or
Foreign Country:
Such Works as, althoiigh wholly situate within the Province,
are "before or after their Scecution declared hy the Parlia-
ment of Canada to oe for the general advar.tage of Canacxt or
for the Advanta.ge of 'r\70 or more of the Provinces.
11, The Incorporation of Corapn.nies v/ith Provincial Object s«
12, The Solemnization of liarriage in the Province,
15. Property and Civil Rights in the Province,
14* The Administration of Justice in the Province, including the
Constitution, llaintenance, and Organization of Provincial Co"j:tr, ,
both of Civil and of Criminal Jurisdiction, and including Pro-
cedure in Civil Hatters in those Courts,
15, Tlie Imposition of Punishment "by Fine, Penalty, or Irrorisoniiient
for Enforcing pjiy Lav: of the Province made in relation to an;'
Matter coming v.ithin any of the Classes of Subjects enumerated
in this Section.
15, Generally r.ll Matters of a merely local or private Nature in the
Province,"
It appears therefore that certa.in legislc^tive ;>owers have '^oeen exclusive-
ly assigned to the ProvinciaJ Legislatures while all other legislative powers
have "oeen granted to the Dominion Parli-unont ."by the comprehensive grant "to
make Isms for the Peace, Order and good C-ovemnontof Canada, in relation to
all I.Ia.tters not coming within the Classes of Subjects by this Act assigned
exclusively to the Legislatures of the Provinces," But within that frajiev;ork,
regulation of labor conditions is generally a natter within the exclusive
jurisdiction of the Provinces just as it is generally within the exclusive
jurisdiction of the Sta.tes in this Country.
In 1925 the G-overnor-G-eneral in Council referred certain questions to the
Supreme Court of Canada in connection vdth the convention of the Interna.tional
labor Orgajiization vfhich limits hours of labor in industrial undertakings to
48 in the week and 8 in the day, (205) The Couxt held that the underta2:ing of
Cana.da under Part XIII of the Treaty of 1/"ersailles (Constitution of the Inter-
national Labor Organization) was to bring the labor convention before the
competent a.uthorities and proceeded to define the competent authorities as
follows:
"Under tJie scheme of distribution of legislative authority' in the
B»K#A. Act 1867, legislative jurisdiction touching the subject-matter of
• this convention is subject to a qualification to be mentioned, prina^''ily
vested in the Provinces. Under the head of jurisdiction in s. 92 (15)
Property and Civil Pdghts, or under s-s,16« Local and Private Matters
Y,'ithin the Province, or under both hea.ds, each of the Province;^ possesses
authoritj^ to give the force of law in the Province to provisions such as
those contained in the draft convention, Tliis general proposition is
subject to this qualification, najnely, that as a rule a Province has
(205) He Treaty of Versailles, Tie Hours of Labor (1925) 3 D.L.R. 1114
9361
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no authority to regulate the houi's of employment of the servants of the
Dominion Government.
It is necessary to observe, also, that as regards those pojrts of
Canada which are not included v/ithin the limits of any Province, the
legislative authority in relation to civil rights generally and to the
suhject natter of the convention in particular, is the Dominion Parlia-
ment • • •
It follows from what has been said that the draft convention ought
to "be "brought "before the ir'arliaraent of Canada as being the competent
legislative authority for ohose parts of Canada not within the bo-undar-
ies of any Province; and if servants of the Dominion G-overnment engp^ed
in industrial undertakings as defined by the convention axe within the
scope of its provision, then the Dominion Parliament is the com;oetent
authority also to give force of law to those provisions as applicable
to such persons.
Hie convention should also be brought begore the Lieutena-nt-Govern-
• or of each of the Provinces for the purposes of enabling hin to bring
it to the attention of the Provincial Lef;islature as possessing, sub-
ject to the qualification m.entioned, legislative jurisdiction vdthin the
Province in relation to the subjec-t-matter of the convention."
The decision confirmed the practice of the government in "referring the
conventions rjnd recommendations to the Dominion or the pi'ovince , according to
the opinion of the Minister of Justice, as to v/hich was the competent author^
ity in each case." (206) Since the Parliament of Canada has exclusive juris-
diction over "Navigation and Shipping" (20?) conventions dealing with seamen
have, as a rule, been ratified and followed 'hy federal legislation. (208)
In 1931 in the case of Re Aerial Navigation (209) the Judicial Committee
of the Privy Council at London, England, considered the povrers of the Dominio:
Parliament to legislate in execution of the convention to regulate aerial
navigation. Canada signed the convention in 1919. The legislation in ques-
tion was the Aeronautics Act 1927 and connected therewith were Air Reg"uJLation5
governing procedure in licensing pilots, aircraft and aerodromes. Though
the Judicial Committee stated that they were in position to uphold er.clusive
regulation of aeronautics by the Dominion on the basis of certain powers: e:>-
pressly granted to the Dominion ^oy the British ilorth America Act and on basis
of the power granted to the Dominion "to make Lav/s for the Peace, Order, and
good Government of Canada," as construed by the courts, they preferred to
put their decision on the broad basis of sec. 132 of the S.II.A.A. which gave
the Dominion pov/er to legislate in execution of treaties. They said:
"It will be observed. ..from the very definite words of the section,
that it is the Parlia,ment and Government of Canada who are to have all
powers necessary or proper for performing the obligations of Canada,
or pjiy Province thereof. It v/ould therefore appear to follow that any
Convention of the character under discussion necessitates Dominion legis-
lation on order that it nay be carried out..."
(206) Bryce i.I, Stewart: Canadian Labor Laws and the Treatj'- (1926) p. 57
(207) British North America Act, 1867, sec. 91 (lO) page 134 supra.
(208) League of Nations, International Labour Conference, Nineteenth Session
Geneva, 1935, Report of the Director, Appendix, International Labour
office, Geneva, 1935. See also International Labouj: Office, Tlie
Progress of Rectification, July, 1935.
(209) (1932) 1. D.L.R. 58
-31-
The fact that the Judicial Committee v/ent out of its way for the first
time to cnruiciate the oower of the Dominion Parliament under Sec, 132 to oass
legislation in execution of treaties and relegated to on inferior position as
"forced analogies or piecemeal analysis" the possibility of suioporting this
legislation as being 7:ithin the j-'orisdiction of the Dominion apart from treaty
makes one feel that "rhen a case is ^resented to the JudicisJ. Committee whereir
the sole support for Dominion legislation 7/ill be s. 132, the Committee rail
uohold such legislation even tho'ogh it might involve matters exclusively rri th-
in the jurisdiction of the Provinces.
Prior to the decision of that appeal a "ororninent v/riter (210) v/hile com-
menting on the decision of the Suoreme Co-art of Cana.da from which the aopeal
had been toJcen to the JudiciaJL Committee of the Privy Council, reached the
conclusion that: "Tlie Dominion Parliament has the pov/er and is the proper
body to pa3S legislation implementing *Sm-oire treaties* even where these treat-
ies deal with matters that ordinarily are vdthin the legislative j-orisdiction
of the provinces."
Soon after the Aeriel Navigation Case the Judicial Committee of the Privy
Council passed on the effect of the international radio convention signed in
Washington, D, C. in 1027, Canada being one of the signatory parties, (211)
The question involved v;as whether the Parliament of Canada had jurisdiction to
regulate cJid control radio conj-nunication. It was held that the Parliament had
such power l) by virtue of the convention, end. 2) because power over broad-
casting was included in the power over "telegraphs" which, being erroressly ex-
cepted from the jurisdiction of the Provinces, secc92 (lOa) of the B.l!,A»
Act, was thereby exclusively granted to the Dominion government in accordance
with Sec. 91 (29) of the 3.IT.A.* Act. Tne Province attempted to establish its
jurisd-iction h-j going over secuions 91 and 92, paragraph by paragraph, and con
ceding certrdn fields to the Dominion while claiming others for itself. TTith
reference to this method the Court comr:iented as follows!
"It is unnecessary to multiply instances, becs-use the real point to
be considered is this manner of dealing with the subject. • • Their Lord-
ships cannot agree that the matter should be so deaJt with. Canada, as a
Dominion is one of the signatories to the Convention. In a question TTit?
foreign powers the "oersons who night infringe some of the sti"oul actions ir
the Convention would not be the Dominion of Canada as a whole but would
be individual persons residing in Canada. These persons must so to
speak be kept in order by legislation, and the onl.^-' legislation that can
deal with thom all at once is Dominion legislation. • •
"It is Canada as a whole which is amenable to the other powers for
the proper carrying out of the Convention: and to ;orevent individua^ls
in Cana.da infringing the stipulations of the Convention it is necessary
that the Dominion sho^'jld rjass legislation which should apply to all the
dwellers in Canada. • •
"... once you come to the conclusion ths-t the Convention is bind-
ing on Canada as a Dominion, there are vaxious sentences of the Boo.rd's
judgment in the Aviation case vrhich might be literally transcribed to
this. The idea p'^rvading that judgment is that the whole subject of
(210) I'.A.a. i!;IacZenzie, Case and Comment, Crmadian Bax P^view, vol. 9.0.506,
at p. 512 (September 1931)
(211) 3.e Regulation and Control of Radio Communications (1932) 2.D.L.R. 81
9361
-82-
aero::.-^.r.tics is . so completely covered by the treaty ratifying the
Convention betv/een the nations, that there is not enough left to give
a separate field to the Provinces as regards the subject. The same might
at least very easily be said on this subject, • •"
Since the radio convention was not in form an ""Empire treaty" sec, 132 wob
not held aiDplicable, technically, but the power of Canada to legislate in
execution of the treaty was upheld under the clause giving the Dominion govern-
ment power "to make Laws for the Peace, Order, and good Government of Canada."
Again the Judicial Committee stressed the power of the Dominion to legislate
in execution of treaties thorigh it could have rested on the power of the Domin
ion to regulate radio as incliided in "telegraphs" sees. 92 (10)a and 91 (29).
Thor;^ decisions foreshadow a holding by the Judicial Committee that Domin-
ion legislation in execution of a labor convention is valid even though but
for the convention the particular labor conditions v/ould be a subject of ex-
clusive Provincial regu3.ati on.
Those decisions had an effect on the procedure of the government in deal-
ing with labor conventions. Ti>.e position was ttiken that the government might
pursue the old method of submitting conventions to the Provincial legislatures
or to the Dominion ^larliament depending on vrhether the subject matter is with-
in the jurisdiction of the former or the latter, but that the government might
also pursue an alternative method of advising ratif ica.tion of the conventions
on behalf of Canada and following up a ratified convention by federal legis-
lation. This alternative method v/as actually followed. In June ojQd July 1935
the Parliament of Canada passed legislation to give effect to the following
three International Labour Organization conventions after they had been rati-
fied by Canada: To provide foi a weekly day of rest, to provide minimum v/age
fixing machinery ^nd for the 8 hour day and 48 hour week. (212) In introduc-
ing the legislation in the House of Commons the Prime Minister stated thevievrs
of the government as follows: (213)
"In introducing this legislation, it v/as pointed out by the Prime
Minister in the House of Commons on February 8, 1935, that in the opinion
of the Government the Parliament of Canada v\ras the competent authority to
give legislative effect to these draft conventions. Reference was made
to the opinions expressed by the Department of Justice as to the legis-
lative jurisdiction concerning the subject matter of the draft conventi:rs.
which had been subm-itted to it at various times and to the judgment of
the Supreme Court of Canada in 1925 that the legislative power in regard
to hours of labour was vested in the provincial legislatures under seclfcion
92 of the British North America Act, except in so far as works and under-
takings v:hich fall within the Dominion jurisdiction are concerned.
(Labour Gazette, July 1925, p. 67l) . T\70 cases involving the power of
the Dominion Parliament to implement an international treaty, by enacting
legislati on in regard to aviation and radio communication, were decided
in favour of the Dominion by the Judicial Committee of the Privy Council
in 1931 and 1932 respectively. These decisions v/ere based largely on
section 132 of the British North American act which provides as follows:
(212) Statutes of Canada, 1935, chs. 14, 44 and 63.
(21o) The Labour Gazette, vol, ]QQCV, No. 8, published by the Department of
Labour, Canada, at Ottawa, August 1935.
9361
The Parliament and Government of Canada shall have all Po"'ers
necessary or proper for performing the Coligations of Canada or of any
Province thereof, as Part of the British Empire, towards Foreir-n Coimtrie
arisin,-; imder Treaties hetueen the Empire and such Foreign Co"antries,,
The Prine i.Iinister expressed the opinion that in vien of these judgments,
the Parliament of Canada is competent to implement draft conventions of the
International Labour Conference of which Canada is a memher and v;hich \;as
estahlished under the Treaty of Versailles to which Canada is a partj'-. The
Pri'.ie I.iinister ohserved, however, that the Treaty of Versailles provides fo:
a federal government exercising its discretion in regard to draft conven-
tions of the International Labour Conference and referring them merely as
recoiienda-tions of the Conference to the provincial authorities.
The discretion might he exercised "by sending the recommendation dor/r.
to a province and it night "be exercised as we now propose to exercise it,
oy legislation in the House. That discretion which is vested in the
C-overnnent of Canada was exercised, it ic true, in one way at one time,
I7e now propose to exercise it as indicated in the judgments in the ro.dio
and aeronautics cases,"
One alternative a-opears to exclude the other. It will he recalled (314)
that a federal state ma"- treat a convention as a recomnendation only if the
power of the state to enter into the particular convention is subject to limi-
tations, Ulien Canada asserts her power to enter into a particular lahor con-
vention and to follow it up "by federal legislation, she thereby takes the
position that her power to enter into the particular convention is not linitec
Thereby she puts herself outside of the group of federal states which may
trea,t a convention as a rocom:.iendation onlj/-. The alternatives which Cane,da
has, appear to be these: Vifhile treating a draft convention as a draft conven-
tion, Cana.da may outain the consent to ratification of the convention either
from the Dominion Parliament alone, v;ith a view to sec. 132 of the British
North Ai.ierica Act, or from the Dominion Parliamont and the Provincial Legisla-
tures and thus fail to utilize the p5wers granted '^oy sec, 132, After ratifi-
cation Ca.nada again has two alternatives: She may make the convention effect-
ive by laws passed by the Dominion Parliament alone, or by laws passed by the
Dominion Parliament and the Provincial Legislatures, all acting within their
usual spheres. In either situation the second alternative is theoretically
possible but is in actuality clumsy and impractical, while the first alterna-
tive appears to be legally sound and practical in either situation.
Irrespective of theoretical assertions, in 1935 Canada, has treated draft
conventions dealing with matters ordinarily within Provincial jurisdiction, as
draft conventions and dealt v.dth them in an expeditious and practical way.
The House of Commons and the Senate of the Parliament of Canada passed resolu-
tions to approve the conventions; by orders in co^jncil the government of
Canada approved the ratification of the conventions; the ratifications were
communicated ''oy the Prime Minister in his capacity as Secretary of State for
External Affairs of Canada to the Secretary-General of the League of Nations
though the Dominion of Canada Advisory Officer accredited to the Leagu-e of
Nations at C-eneva, then legislation was enacted to give effect to the conven
tions. (215)
(214) Art. 405 (9), page 85 supra,
(215) The various steps are described in The Laboui' Gazette, Dept. of Labor,
Ottav:a, Canada, A-u^'iist 1935,
9361
-84-
By v;cy of sin.imary, the follo\/ing may be stated:
1. Tiiere is no yinilarity "betv/een the -orocedure "by which a treaty is
made on "behalf of Canada and on beha,lf of the United States.
2« There is no question of a limitation "by a due process clause in
Canada \7hile such a limitation seems to e:;ist in the United States.
3« La^hor conditions axe ^ithin the jurisdiction of the Provinces in Cane
da and of the States in the United States; in this respect there is great
similarity.
4, Lahor conditions amonr: seamen are m thin the exclusive jurisdiction
of the Parliament of Canada* Consequently thrt "body passed legislation to ;"-:i-^
effect to several conventions regulating la.'bor conditions among seamen ratifit
on behalf of Canada.
5, The Parliament of Canada seems to have po'..'er, "by legislation passed
in execution of a treaty, to regulate matters normally within the jurisdictior.
of the Provinces; the sit'ua.tion is similar in the United States where Gongress
has power to regulate matters reserved to the States if such regulation talies
■ola.ce in order to give effect to a treaty,
6, As soon S.S it "became apparent that the Parliament of Canada ha.s the
pov/er descrioed in the -oreceding iDaragraoh, the Canadian federal government
adopted the procedure of ratifying conventions of the International Labour
Organization, pnd tiie Pprliament of Canada follov/ed them up by statutes in ex-
ecution of the conventions, binding all over Canada whether or not they regu-
lated matters ordinn.rily v,'ithin the jurisdiction of the Provinces.
Tne procedure in this country, it is submitted, should be similar.
Because of Ipck of time no study has been made of the const i tut ion-al prob-
lems of foreign federal states other than Cana.da, in connection v'ith their
ratification of conventions drafted by International Labour Conferences.
9351
I
-35-
CHAJTEH IX
SUGGESTIONS AS TO TREATIES WITH CAJMADA ABOLISHING CHILD LABOR
AND LII/IITING HOURS 0? LABOR
The lat'or standards estaMished in the conventions of the International
Labor Organization are not the standards of the most advanced comitries. Ad-
vanced countries can afford to give their working people better conditions the
can hackuarc co-untries because of higher teclinological development, better
r)lants and better industrial management. The United States being industrially
among the most advanced or perhaps the most advanced nation ought naturally to
be able to maintain its working population in much better working conditions
than is the case in other countries. Actually the organized workers of this
country heave achieved standards higher than those fixed in the International
Labor Organization conventions. For instance, an S hour day or 48 hour wee]:,
(216) is certainly too long for this cowitry. Similarly a 14 year limit on tl
age at ^-hich children are admitted to employment (217) is too low, Thoue;h
this coiintry may be able to afford a 16 year minimum wage provision and a
general 35 to 30 hour week, many other countries can hardly do so. In this
connection it may be important to bear in mind that the agenda of the 1936
Conference of the International Labor Organization will include a proposed
draft convention to establish a 40 houi' week in the textile industry,
A treaty v/ith one power regulating child labor and hours of labor v/ould
be legally just as valid and binding as a convention drafted b^r the Interna^
tional Labor Organization and ratified by many countries.
For reasons sta.ted in Chapter V of this study, the fixing rainim-um wages
is disregarded. As to hours of labor and minimum age of admission to employ-
ment the United States might, if it desired to do so, enter into a treaty with
another nation, for instance Canada, fixing standards as to those two subject
matters.
Hours of L^bor; A superficial glsmce at the Report of the Canadian De-
partment of Labor (218) shows that in the year ending March 31, 1934, the
average hours of labor seem to have been far above 40 per week. They were
probably 45 to 48 per week, though in some industries they were 40 and in some
still lower. According to trade union reports unemployment among trade
unionists in Canada in 1934 (membership of trade unions was 155,694) was lr,2fo
(219) In 1935 unemployment decreased, but in July 1935 it was still 15,lfo,
(220)
In the United States average ho~ars in all industries declined from 43,5yj
per week in June 1933 to 37 per week in June 1934. (221) Hours are probably
(216) Convention No. 1 - p, 115 s-'.-'pra.
(217) Conventions No, 5, 33 - p, 117 siior-..
(218) Dominion of Canada, Report of the Department of Labour for the fiscal
year ending March 31, 1934, Ottawa, 1934,
(219) The Labo^or Gazette, February 1935 at p, 170,
(220) The Labour Gazette, September 1935, p, 846.
(221) Tables on Operation of the National Industrial Recovery Act as prepared
by Research & Planning Division of the National Recovery Administration,
Washington, D.C, February 1935, Table 6.
9361
-86-
longer non v;hile iinemplojTnent is generall;''- adiiiitted to "be aro-und 10 million.
From the standrooint of this coimtiy a 40 hour treat;- would te a step forward
"because Tdj^ cutting down the hours where thev are alDOve 40, the general average
would te "brought dovm "below 40. It is not known whether Conada would "be
willing to agree to a 40 hour treaty, An inqv.ir;;' v;ould easil7 reveal the
state of rnind of the Canadian Goveriment.
Child Laoor: There is a greater prohahilit;;- of Canada's agreeing
treaty limiting the ninimum aige of enplojrr.ient of children to 15 or perl
to a
perhaps
16 years. Let lis compare the situation in the United States and in Canada
as regards child lahor.
The K.R.A. codes had practically al)olished child lahor in the United
States. (222) The general limitation was 15 years with some exceptions which
made the minimrj-i either higher or lower than 16. Apart from that there was,
in general, an 18 year limitation in hazardous occuoations. In some trades
where work is hard and hazardous, the limitation was 21 years. After the
l^.E.A. had "bee3i declared invalid child la"bor "began to come hack. To what ex-
tent no"body knows, "but it seems certain that in the ahsence of a legal check
employment of children will increase and will throw out of emplo^n-nent a^dult
worlanen, heads of families.
A study pu"blished "by the International La"bor Office (223) which con-
tains a review of the legislation of all co-ontries as of Januar^r 1, 1935
shows that at that time the great majority of the States of the United States
had laws limiting the age of admission of children to industrial emplojrment,
or employment in general at 14 years. Some states had a higher limit; 15
years was the li^iit in G£?lifornia,, Michigan and Te;;a,s; 15 years in Montana,
Ohio, Utah and Wisconsin, According to a suramar;^'' pu'blished "by the Children's
Bureau of the U. S. Department of Lahor, (224) in the year 1935,
"Stimulated ■■jjidou"btedly "by the effect of the
ITSA code lorovisions which fixed in most industries
a 16 ^'■ear m.inimum age for emplojrment of minors, 2
States, Connecticut and New York, have enacted
legislation esta"blishing a minimum age of 16. Even
with this addition only 5 States have laws fixing
a minimum age of 16 for em-oloyment during school
hours,"
In Canada the standards are slightly lower. According to the Internatiorj
al Lahor Office study (225) the minimum age of admission of children to em-
ployment in factories was 15 years in Al"berta and British Colum"bia; 14 yes^rs
in Hova Scotia, Ontario, Q;ae"bec and Saskatchewan, in the latter province the
age for girls was 15 years. Apart from that there are higher limits in
hazardous occupations.
(222) U.S, Department of Lahor, Children's Bureau, Washington, "Effect of
N.R.A, Codes on Child La"bor, June 5, 1935,
(223) International Lahor Office; Children and Young Persons Under Labour
Law, Geneva, 1935,
(224) Child-Welfare News Summary, Children's Bureau, U.S. Department of
La"bor, Washington, D. C, June 14, 1935,
(225) Note 223 supra.
9361
-87-
The Literal gove'rnment which came into power on October 14, 1935 is
undoubtedly in favor of progressive labor legislation. The Prime Minister,
Mackenzie King, was connected w ith the Department of Lahor at Ottawa for
many years. However, the constitutional power of the Dominion Government
to enact legislation "by way of giving effect to treaties and therehy to
regulate labor conditions in the provinces is not yet estalDlished 'by the
courts. It has "been stated in Chapter VIII of this paper that the Dominion
Parliament passed legislation in the Summer of 1935 to give effect to several
lator conventions of the International Lahor Organization, that is, those
providing for a 48 hour week and 8-hour day, for a 24-hour rest in a week and
for the establishment of minimum wage fixing machinery. The attitude of the
Liberal Government towards this legislation has been described by the Ottawa
correspondent of the New York Times, (226) as follows:
"He (prime Minister Mackenzie King) has announced
that at an ea.rly date the Supreme Court of Canada
will be asked to pass upon the validity of the
eight-hour day, the minimum wage, unemployment
insurance and other social measures enacted by the
Bennett government,
Mr. Kin;^^ has let it be known that he sympa^-
thizes with the aims of this legislation but is not
sure of its validity in view of the fact that the
British North America Act allotted control of prop-
erty and civil rights to the Provinces.
"Unlike the United States, Canada possesses
machinery for testing the constitutionality of legis-
lation before it is put into effect. The eight-hour
day law was actually supposed to take effect before
the elections, but the Department of Labor, uncertain
of its authority, delayed the framing of regulations,"
On the basis of the decisions of the Judicial Committee of the Privy
Council in the Aviation and Radio cases (227) one may be confident that the
statutes in queswion will be sustained. If the Supreme Court of Canada
should sustain them the decision would be handed down in a few months. An
appeal to the Privy Council at London would take longer. It is not believed
that the Canadian Government will negotiate an hours treaty or minimum age
treaty with the United States without a judicial decision upholding the
validity of the statutes enacted in 1935 by way of giving effect to conven-
tions of the International Labor Organization.
For the purpose of drafting a treaty or treaties with Canada limiting
the hours of labor or the age of admission of children to employment, it is
believed that the Labor Studies Section should be called upon to supply sub-
stantive provisions which are considered desirable and capable of being in-
troduced in this country, and at the same time offer a probability of being
accepted by Canada, all on the basis of studies made or to be made. Such
data can then be embodied in a treaty or treaties and in legislation which
will give effect to the treaties.
(226) The N, Y. Times of Nov. 3, 1935 "King to Rush Test on New Job Laws".
(227) Notes 209 and 211, supra.
9361
"88-
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