"Above all nations is Humanity."

GOLDWIN SMITH.

"The peace of the nation and its good faith and moral dignity indispensably
require that all state laws should be subject to the supremacy of treaties with
foreign nations. ... It is notorious that treaty stipulations were grossly
disregarded by the states under the Confederation. ... It was probably to obviate
this very difficulty that this clause was inserted in the Constitution; and it would
redound to the immortal honor of its authors if it had done no more than to bring
treaties within the sanctuary of justice as laws of supreme obligation."

STORY.

CHAPTER VII

TREATY POWER AND STATE RIGHTS

MUCH has been written recently with reference to the rights of the Japanese
pupils, in the public schools in San Francisco, under the treaty of 1894 between
our country and Japan. The San Francisco affair is but one of many incidents
growing out of treaty rights, and is not so material as the general question of the
rights of emigrants from other countries which have treaties with the United
States, securing to their people the privileges of the citizens of this country. At
the rate of about 1,000,000 a year such people have been coming to our country
for many years and will continue to come. In the main they are the most helpless
of our population and are the most in need of the protection of our laws. No
change in our country is so apparent as the difference between the way these
poor immigrants were looked upon thirty or forty years ago and to-day.
Frequently in our courts one is strongly impressed with the inability of many of
the people from foreign lands, especially from Italy, Hungary, Russia, and China,
to procure protection for their rights. What rights they have under treaties, and
whether those guarantees in the treaties can be violated with impunity by state
authorities, should be carefully examined and de-

termined. Such a careful examination leads to the conviction that all treaties
between the United States and a foreign country, securing to the citizens of the
foreign country upon emigration to our shores the rights which we accord to our
own citizens, is as much a part of the law of every state of the Union as though
the constitution of each state had secured the same rights to such immigrants.

The provision of the Constitution which secures this right is found in Article 6,
subdivision 2, as follows:

"This Constitution, and the laws of the United States which shall be made in
pursuance thereof, and all treaties made, or which shall be made, under the
authority of the United States, shall be the supreme law of the land; and the
judges in every State shall be bound thereby, anything in the constitution or
laws of any State to the contrary notwithstanding." Mr. George Ticknor Curtis
says of this provision: "It is a remarkable circumstance that this provision was
originally proposed by a very earnest advocate of the rights of the States —
Luther Martin. His design, however, was to supply a substitute for a power over
State legislation, which had been embraced in the Virginia plan, and which was
to be exercised through a negative by the national legislature upon all laws of
the States contravening, in their opinion, the Articles of Union or the treaties
subsisting under the authority of the Union. The purpose of the substitute was
to change a legislative into a judicial power, by transferring from the national
legislature to the judiciary the right of determining whether a State law supposed
to be in conflict with the Constitution,

laws, or treaties of the Union should be inoperative or valid."1

In construing constitutions and their provisions it is an elementary rule that you
can consider the history of the times when the constitution was formed and the
evils which it was intended to correct to ascertain the meaning of the language.2
Even under the Confederation the exclusive right to make treaties was in the
Federal government, and at the time the Constitution was formed the states had
not been accustomed to act as sovereign commonwealths in international affairs.
The treaty of peace of Paris in 1883, between the United States and the English
government, provided that the American loyalists, whose property had been
confiscated by various state governments, should be not only indemnified for
their losses but should be secured in the future; and it also provided that all
impediments to the collection of private debts from Americans to British
creditors should be removed, and that those debts should be paid by the
American debtors in pounds sterling. The people were indignant that their
government should have made these stipulations in the treaty. Clergymen cried
out against the tories from their pulpits; bills in different states were passed
disfranchising them and confiscating their estates; ironclad oaths were required
of them. A trespass act in New York allowed the patriot owners of property who
had left the

1 George Ticknor Curtis, Const. History of the U. S., 2d ed., p. 554.

2 Rhode Island v. Mass., 12 Peters, 723; ex parte Williams, 114 U. S., 422;
Maxwell v. Dow, 176 U. S., 602.

state during its occupation by the British, to recover from the loyalists who had
occupied their property damages for its use in an action of trespass. The
different states not only refused to obey the treaty, but after its adoption, as well
as during the Revolutionary War, they passed acts in their legislatures allowing
a debtor to deposit the paper money of the time, of little value, in court, or in
some states with the Commissioner of Loans or Claims, to the amount of his debt
to a British creditor; and the law provided that upon such deposit a certificate
should be given to him which should be regarded as a satisfaction of his
indebtedness. If the British creditor procured a judgment against the debtor,
collection upon execution was made impossible by stay laws.

The treaty had provided that they should recognize the rights of loyalists to
their property, but instead some of the states passed confiscation laws. In every
way of which the people of the states could conceive they robbed the loyalists
of their property, drove them from the country, resisted the payment of debts to
English creditors, and made a nullity of the treaty. It was because of such action
that the British refused to surrender the forts which they occupied on our
frontier. The performance of a treaty depends upon the honor and the honesty
of the nations which enter into it, as there is no vindication of the rights of the
parties making it except through damages for its violation or by war.

When we consider these facts we can see that the statesmen of those times, in
framing the Constitution,

naturally would have made provisions whereby treaties made by the nation
could not be violated by the states. That they did make such provision is very
clear. On March 21, 1787, about two months before the meeting of the
Convention to frame the Constitution of the United States, Congress passed a
resolution which reads: "Resolved, That the legislatures of the several states
cannot of right pass any act or acts, for interpreting, explaining, or construing a
national treaty or any part or clause of it; nor for restraining, limiting, or in any
manner impeding, retarding, or counteracting the operation and execution of the
same, for that on being constitutionally made, ratified, and published, they
become in virtue of the confederation, part of the law of the land, and are not
only independent of the will and power of such legislatures, but also binding
and obligatory upon them."1

On April i3th, one month and one day before the meeting of the convention to
draft the Constitution of the "United States, the representatives of the states, in
Congress assembled, prepared a letter to the states asking each of them to enact
identical laws of the following frame: "Whereas certain laws or statutes made
and passed in some of the United States are regarded and complained of as
repugnant to the treaty of peace with Great Britain, by reason whereof not only
the good faith of the United States pledged by that treaty has been drawn into
question, but their essential interests under that treaty greatly affected. And
whereas justice

1 Journals of Congress, ed. of 1801, vol. xii, p. 24, March 21, 1787.

to Great Britain as well as regard to the honour and interests of the United States
require that the said treaty be faithfully executed, and that all obstacles thereto,
and particularly such as do or may be construed to proceed from the laws of this
state be effectually removed. Therefore, Be it enacted by ... and it is hereby
enacted by authority of the same, that such of the acts or part of acts of the
legislature of this state as are repugnant to the treaty of peace between the
United States and his Britannic Majesty, or any article thereof, shall be and
hereby are repealed. And further, that the courts of law and equity within this
state be, and they hereby are directed and required in all causes and questions
cognizable by them respectively, and arising from or touching the said treaty, to
decide and adjudge according to the tenor, true intent, and meaning of the
same, anything in the said acts, or parts of acts, to the contrary thereof in any
wise notwithstanding."l The letter which accompanied this proposed law stated
that it was drafted in a general form, repealing all acts or clauses in said laws
repugnant to the treaty, because the business of determining what acts and
clauses were repugnant to the treaty would be turned over to the judicial
department, and "the courts of law would find no difficulty in deciding whether
any particular act or clause is contrary to the treaty."

Now Madison, who more than any other member of the Constitutional
Convention guided its action, when a member of Congress was instrumental in
bringing about the passage of this resolution of March 2ist and drafted 1
Journals of Cong., ed. of 1801, vol. xii, p. 35.

the proposed law of April 13th for the states. Gorham was not only a member of
that Congress, but he was one of the framers of that very clause of the
Constitution of the United States which we have cited above, and also a member
of the first committee of five which reported the original draft of the
Constitution. Johnson, the Chairman of the second committee of five, and
Hamilton and King, members of the committee which reported the revised draft
of the Constitution, were also members of the Congress which in March and
April passed the above resolution and prepared the proposed law.

The original clause adopted by the Constitutional Convention with reference to
the treaty-making power is as follows: "This Constitution, and the laws of the
United States made in pursuance thereof, and all treaties made, or which shall be
made, under the authority of the United States, shall be the supreme law of the
several states and of their citizens and inhabitants, and the judges in the
several states shall be bound thereby in their decisions, anything in the
constitutions or laws of the several states to the contrary notwithstanding."1
The second committee of five, which gave us the final draft of the Constitution,
struck out the words "several states and of their citizens and inhabitants," and
left the law reading, "shall be the supreme law of the land." The words "supreme
law of the land or a part of the law of the land " is an expression taken from the
law of nations; and was especially used in the common law, with reference to
treaties, as a law which could not be affected by the law of the legislature, but
prevailed as 1 Elliot's Deb., vol. i, pp. 265, 266.

the superior law throughout the extent of the nation entering- into the treaty.
Every lawyer in the Constitutional Convention was undoubtedly familiar with
Blackstone's words, "In arbitrary states this law " (i. e., the law of nations)
"whenever it contradicts or is not provided for by the municipal law of the
country, is enforced by the royal power; but since in England no royal power
can introduce a new law, or suspend execution of the old, therefore, the law of
nations " (whenever any question arises which is properly the object of its
jurisdiction) "is here adopted in its full extent by the common law and is held to
be a part of the law of the land."l

In the case of Trevett v. Weeden the "law of the land " of Rhode Island was
involved. Rhode Island had no written constitution, yet her legislature had
declared that the refusal to accept the paper money issued in 1786, in payment
for goods purchased, should be regarded as a crime; and that the persons
charged with such crime should be tried before three magistrates without a jury,
and that they might be found guilty by a majority of the judges present
according to the laws of the land. The Supreme Court of that state held that this
was not according "to the law of the land," as the right of trial by jury was a
superior right which no statute of a state could destroy; and this was held in a
state which had no written constitution in the modern sense at the time the law
was passed and the decision made.

In the next year, at Newbern, N. C., in the case of Bayard v. Singleton, the
supreme court of that 1 Blackstone, vol. iv, ch. v, p. 67.

state held that the act which permitted a purchaser of confiscated estates from
the Commissioner of the State, when action was brought against him by the real
owner to recover possession of the lands, to present his certificate of purchase
from the Commissioner and move that the case be dismissed upon his affidavit
filed, was not "the law of the land," because it failed to give the plaintiff the
right of trial by jury which was part of the "supreme law of the land." Eight of the
different states in their written constitutions expressly mentioned the "supreme
law of the land " as being superior to any law which could be passed by the
legislature.

On January 16, 1788, General C. C. Pinckney, speaking in the South Carolina
Convention for the adoption of the Constitution, contended that even the
Articles of Confederation bound the people of the different states by a treaty as
well as does the Constitution of the United States, saying: "Indeed, the doctrine
that the king of Great Britain may make a treaty with a foreign state, which shall
irrevocably bind his subjects, is asserted by the best writers on the laws and
constitution of England — particularly by Judge Blackstone, who, in the first
book of his Commentaries (ch. vii, p. 257), declares 'that it is the king's
prerogative to make treaties, leagues, and alliances with foreign states and
princes, and that no other power in the kingdom can legally delay, resist, or
annul them.' If treaties entered into by Congress are not to be held in the same
sacred right in America, what foreign nation will have any confidence in us?
Shall we not be stigmatized as a faithless, unworthy people, if each member of
the Union may, with impunity,

violate the engagements entered into by the federal government? Who will
confide in us? Who will treat with us if our practice should not be conformable
to this doctrine? . . . I contend that the article in the new Constitution, which
says that treaties shall be paramount to the laws of the land, is only declaratory
of what treaties were, in fact, under the old compact. They were as much the law
of the land under that Confederation, as they are under this Constitution; and
we shall be unworthy to be ranked among civilized nations if we do not consider
treaties in this view, . . . Burlamaqui, another writer of great reputation on
political law, says: 'that treaties are obligatory on the subjects of the powers who
enter into treaties; they are obligatory as conventions between the contracting
powers; but they have the force of law with respect to their subjects.'"1

The delegates from the different states in the Constitutional Convention well
understood that this provision in the Constitution as to treaties was to be the
paramount law of the whole land, binding the citizens and the legislature of
every state just as effectively as it bound the national government. In the New
York Convention, Lansing, who was a member of the Convention framing the
Constitution, portrayed the dangers of putting- such a power in the hands of the
executive and the Senate, and offered this resolution: "Resolved, as the opinion
of this committee, that no treaty ought to operate so as to alter the constitution
of any state ;

nor ought any commercial treaty to operate so as to

abrogate any law of the United States."2

1 Elliot's Deb., vol. iv, pp. 278, 279. 2 Elliot's Deb., vol. ii, p. 409.

Foreign treaties, as a rule, for reasons which will be apparent on reflection to
everybody, always have been intrusted to the king, the president, or the head of
the nation. John C. Calhoun, in the House of Representatives on January 8, 1816,
referring to our obligation to act with the rest of the world through a single head,
said: "The enumeration of legislative powers in the Constitution has relation,
then, not to the treaty-making power, but to the powers of the states. In our
relation to the rest of the world the case is reversed. Here the states disappear.
Divided within, we present, without, an exterior of undivided sovereignty. The
wisdom of the Constitution appears conspicuous. When enumeration was
needed, there we find the powers enumerated and exactly defined; when not, we
do not find what would be vain and pernicious to attempt. Whatever, then,
concerns our foreign relations, whatever requires the consent of another nation,
belongs to the treaty power — can only be regulated by it; and it is competent
to regulate all such subjects, provided — and here are its true limits — such
regulations are not inconsistent with the Constitution."1 This is the language of
the great expounder of state rights; but in it we see not a word about the United
States having the right to make treaties only so far, and upon only such subjects
as are delegated by the people to Congress. The only limitation which he states
is that the treaty regulations must not be inconsistent with the Constitution.

That Mr. Calhoun, who championed the cause of 1 Elliot's Deb., vol. iv, p. 464.

state rights, did not believe for one moment that a treaty was not a law
controlling the different states and all of their inhabitants as effectually as it
controlled the national government itself is well seen in the following statement
of his views. According to his opinion, the only limitations on the treaty-making
power were as follows: First, It is limited strictly to questions of inter alios, "all
such clearly appertain to it." Second, "By all the provisions of the Constitution
which inhibit certain acts from being done by the Government or any of its
departments." Third, "By such provisions of the Constitution as direct certain
acts to be done in a particular way, and which prohibit the contrary." Fourth, "It
can enter into no stipulation calculated to change the character of the
Government, or to do that which can only be done by the Constitution-making
power; or which is inconsistent with the nature and structure of the Government
or the objects for which it was formed."1

From the above discussion we reach the conclusion that the treaty power, as
expressed in the Constitution, is unlimited, except by those restraints which are
found in the Constitution against the action of the general government or its
departments, and those arising from the nature of the government itself. We
could not by treaty change the character of our government, cede a portion of
our territory, or make any fundamental changes thereof. But with these
exceptions every provision of a treaty made with a foreign government is as
binding upon the citizens of each state as a provision 1 People v. Gerke & Clark,
5 Calif. Reports, § p. 384.

of their own constitution, or an act of their legislature authorized by their
constitution.1

The recent contention of the State of California, wherein it is claimed that the
reserved rights of the states cannot be affected by the treaty power, has not a
particle of foundation. Of course the power of making treaties comprehends only
those objects which are usually regulated by treaties and cannot be otherwise
regulated. But within that limitation the provisions of a treaty fixing the rights of
immigrants from foreign lands is as binding upon the people of every state, and
upon the states themselves, as would be the constitution of the state or the laws
made pursuant thereof by the legislature. And the whole talk which we have
seen in the newspapers in recent days over the reserved rights of California, and
her right to disregard a treaty of the United States, has not a particle of
foundation. If any question was ever put beyond doubt by a uniform course of
decisions in the United States Supreme Court, almost from the date of the
Constitution down until the present day, it is the above proposition.

The word "treaty " at the time of making the Constitution had a distinct and
well-defined meaning, and covered the agreement between the sovereign powers
of two governments regulating, among other things, the status of their citizens
emigrating from the country of the one to the country of the other. That power
had always been exercised by the king, or president, or the single supreme
one-man power of any government, or, when such a power did not exist, by its
legislature. 1 Geofroy v. Riggs, 133 U. S., 258, 267.

The whole of the treaty-making power was conferred upon our national
government, for the Constitution provides that "No state shall enter into a
treaty, alliance, or confederation."

As early as 1796 the question arose as to the effect of the treaty of peace with
Great Britain, made under the Confederation in 1783, upon laws enacted prior as
well as subsequent to the treaty by the State of Virginia. At the time of the
making of that treaty the merchants of Virginia were largely indebted to British
creditors. Most of those debts arose prior to the commencement of the
Revolutionary War, and the war suspended the running of the statute of
limitations. The treaty of 1783 recognized the legality of such claims, and
provided that they should be paid, not with the paper money of the colonies, but
with gold and silver, the currency of the world. Virginia, among other states,
passed a law permitting the debtor to pay the amount of the debt in paper money
to the Commissioner of Loans, whereupon he should be given by the
Commissioner a certificate of payment, which the law provided was satisfaction
of the debt. A defendant, Hil-ton, had complied with this statute and procured
his certificate, and the sufficiency of that certificate as against the treaty was
directly involved. The United States Supreme Court,1 with only one dissenting
Judge, held, that under the Confederation, as well as under the Constitution, the
treaty was the supreme law of the land, and that the statute of Virginia was void,
saying:

"A treaty cannot be the supreme law of the land, that 1 Ware v. Hilton, 3 Dallas,
211.

is, of all the United States, if any act of a state legislature can stand in its way."
The creditor was allowed to recover the full amount of his claim,
notwithstanding the payment by the debtor of the full amount thereof in paper
money to the Virginia Commissioner.

Then followed a large number of cases in which, by the statutes of the different
states, an alien was prohibited from taking title by descent and sometimes by
devise; other cases also, involving the rights of loyalists and their devisees to
lands in the different states where the states had confiscated their titles. All
these matters, as the reader will see, were matters entirely of domestic law, the
control of which the states had reserved absolutely to themselves. No grant of
power to the national government covers a single one of them, and they were
matters peculiarly within the control of domestic legislation. And yet the Federal
co-urts and the state courts, in numerous cases, held that treaties giving to
aliens, or to grantees, heirs, or devisees of a loyalist, rights to real estate, in the
very teeth of state statutes to the contrary, were controlling.1 In Hauen-

1 State of Georgia v. Brailsford, 3 Dallas, 1; Fairfax v. Hunter, 7 Cranch, 603; Craig
v. Radford, 3 Wheaton, 5 94; Orr v. Hodgson, 4 Wheaton, 453; Shirac v. Shirac, 2
Wheaton, 259;

Pollard v. Kibbey, 14 Peters, 353, 412, 415; Spratt v. Spratt, 1 Peters, 342; People
v. Gerke, 5 Calif., 381; Watson v. Donnelly. 28 Barber, 653; Maiden v. Ingersoll, 6
Mich., 373; Rebassess Succession, 47 La. Ann., 1,452, Chy Lung v. Freeman, 92
U. S., 275; in re Parrott, 6 Sawyer, 349; Baker v. The City of Portland, 5 Sawyer,
566; Yeaker v. Yeaker, 4 Metcalf (Ky.), 33, also 81 American Decisions, 530-534;
Baker v. Shy, 9 Heisk, 85, 89;

Wunderle v. Wunderle, 144 Ill., 40; Monroe v. Merchant, 28 N. Y., 9, 39; in re
Becks Estate, 31 N. Y. State Reporter, 965;

stein v. Lynham,1 the United States Supreme Court said:

"It must always be borne in mind that the Constitution, laws, and treaties of the
United States are as much a part of the law of every state as its own local laws
and constitution. This is a fundamental principle in our system of complex
national polity," citing many cases.

Mr. Butler, in his work on The Treaty-Making Power, summarizes the holding of
the cases as follows:

"First, That the treaty-making power of the United States, as vested in the
central government, is derived not only from the powers expressly conferred by
the Constitution, but that it is also possessed by that government as an attribute
of sovereignty, and that it extends to every subject which can be the basis of
negotiation and contract between any of the sovereign powers of the world, or
in regard to which the several states of the Union themselves could have
negotiated and contracted if the Constitution had not expressly prohibited the
states from exercising the treaty-making power in any manner whatever and
vested that power exclusively in and expressly delegated it to the Federal
government. Second, That the power to legislate in regard to all matters affected
by treaty stipulations and relations is coextensive with the treaty-making power,
and that acts of Congress enforcing such stipulations which, in the absence of
treaty stipulations, would be unconstitutional as infringing upon the powers
reserved to the states, are constitutional and can be enforced

Ho Ah Kow v. Nunan, 5 Sawyer, 552; Kull v. Kull, 37 Hun, 476; Opel v. Shoup,
100 Ia., 420; Cornet v. Winton, 2 Yerg., 143. 1 Hauenstein v. Lynham, 100 U. S.,
490.

even though they may conflict with state laws or provisions of state
constitutions. Third, That all provisions in state statutes or constitutions which
in any way conflict with any treaty stipulations, whether they have been made
prior or subsequent thereto, must give way to the provisions of the treaty, or act
of Congress based on and enforcing the same, even if such provisions relate to
matters wholly within state jurisdiction."

There are certain cases which do not seem at first sight to be in accord with the
cases cited. Thus, Chief Justice Taney says1 that the treaty-making power of the
United States, in order to be legitimately and constitutionally exercised, must be
employed in full recognition and subordination to the constitutional powers of
the several states; although the treaty-making power, in carrying out the
purposes and designs of the framers of the Constitution, excludes the states
from all intercourse with all foreign nations, still this power is of no higher order
than any other power of the Federal government, and that all must be exercised
in full recognition and subordination to the constitutional rights of the several
states.2 But all these remarks will be found unnecessary to the decision of the
particular case before the court, and, in view of the many authorities to the
contrary, the rule would seem to be that if the subject of the treaty be a subject
of international diplomacy, it not only may contravene the statute of a state but
it

1 Holmes v. Jennison et al., 14 Peters, 546, 569. 2 Mayor of New Orleans v. U. S.,
10 Peters, 66; License Cases,

5 Howard (513) per Daniel J.; Passenger Cases, 7 Howard, 783

(507).

becomes the absolute law of that state. Treaties are entitled to a liberal
construction in favor of those claiming under them.1 If, therefore, the people of
any other country are secured privileges and immunities in our own country by
virtue of a treaty, the provisions of that treaty, if admitting of two constructions,
the one narrow, the other liberal in its nature, the latter is always to be preferred.

In March, 1891, a number of Italian criminals in New Orleans murdered the Chief
of Police of that city. He had been especially active in following them up in their
crimes, and in revenge therefor, at a given signal in the night time given by an
Italian boy, he was shot and killed. Nine of the Italians supposed to have been
guilty of the offense were brought to trial. The jury acquitted six of them and
disagreed in the case of the other three. On the night following the end of this
trial a mob broke into the prison, took out the Italian prisoners and shot them.
The Italian government, through its minister, demanded that the lynchers should
be punished and that an indemnity should be paid. Mr. Blaine, who was at that
time Secretary of State, in answer to this demand took the position that the
United States government had no local jurisdiction in Louisiana, but that the
courts of that state were open to the Italian government for prosecution. He
assured the Italian minister that the national government would urge the state
government to institute criminal proceedings against the leaders of the mob. The
Italian minister,

1 Tucker v. Alexandroff, 183 U. S., 424, 437; Chew Keong v. United States, 112 U.
S., 540 of opinion.

Baron Fava, not satisfied with this answer, left Washington without any notice
to our government and returned to Italy, and the American minister at Rome left
Italy. It was afterwards ascertained that only three of the nine Italians killed were
subjects of the King of Italy, the rest having been naturalized in this country,
and the matter was adjusted by the payment of $25,000 to the relatives of the
men killed.

This attitude of our government was alleged to have been taken because
Congress had passed no statute making the offense a crime and prescribing the
punishment therefor. Chief Justice Marshall, in Foster v. Nielson,1 says: "Our
Constitution declares a treaty to be the law of the land. It is, consequently, to be
regarded in courts of justice as equivalent to acts of the legislature, whenever it
operates of itself without the aid of any legislative provision." Undoubtedly the
relatives of the murdered Italians could have enforced a civil remedy in the
United States court, and in the courts of Louisiana, against the persons
connected with their murder. The difficulty with enforcing a criminal proceeding
on the part of the national government is that the national courts have no
common-law jurisdiction of crimes, their jurisdiction depending absolutely upon
national statutes prescribing the causes for which convictions can be obtained,
and also the punishments which may be inflicted There is no question but that
the United States government can pass a statute making such an act a crime and
enforce it.2

1 Foster v. Nielson, 2 Peters, 253. 2 Baldwin v. Franks, 120 U. S., 678.

The national government, however, has never shown any great anxiety to
enforce the treaty rights of its alien population. Its attitude toward the State of
California in the recent matter was by no means so strenuous as was shadowed
forth in the message of the President. In many states there exists a bitter feeling
on the part of the people toward the alien population. It is easy for demagogues
to fan that feeling into a flame of passion, and it is a most common occurrence
for the aliens' rights to be violated. The reason of this impotency is very
apparent to one who appreciates the importance to political parties of securing
the votes of the people of the states. The voting population of the state is
generally hostile to the alien population. Some of them regard aliens as taking
away their jobs. They are turned away from them in many cases by their customs
and manners of life. They regard them as merely transient people ready to return
to their own country when they have accumulated any property. Injustice
toward them under such circumstances is very common.

The United States government, in support of treaty rights, can easily pass
statutes prescribing the acts which are criminal on the part of the citizens of
states against their alien population and fixing the punishment upon conviction,
if it would. It likewise has the power to protect their rights with national troops.
In the Debs Case, Mr. Justice Brewer, speaking with reference to the United
States government depending upon the states for the enforcement of the
national laws, said: "There is no such impotency in the national government.
The entire strength of the nation may be used to enforce in any part

of the land the full and free exercise of all national powers ; and the security of
all rights intrusted by the Constitution to its care. The strong arm of the national
government may be put forth to brush away all obstructions to the freedom of
interstate commerce, or the transportation of the mails. If the emergency arises,
the army of the nation, and all its militia, are at the service of the nation to
compel obedience to its laws."

Notwithstanding that the national government has this power, our alien
population, protected fully by treaties, quite frequently are assaulted by mobs
and their rights destroyed or imperiled, and little opportunity is given in the
United States courts for redressing the wrongs. These alien laborers, in the last
twenty years, have constructed thousands of miles of railway, and tens of
thousands of miles of roads and streets. In the main, they are ignorant of our
language, ignorant of our laws, subject to imposition, and helpless in the
enforcement of their rights in the courts. We owe it to them, and we owe it still
more to ourselves, to protect them. The national government ought to see to it
that laws are passed protecting them from injuries. The Queue Case in California,
the imprisonment of a considerable number of Chinamen in Boston a few years
ago for the purpose of ascertaining if each of them had certificates, the ruthless
treatment extended to Italians, Hungarians, and Chinamen all over our country,
are a disgrace to us, an injury to us in foreign countries, and demand immediate
remedial action on the part of the national government.

The school law of California passed in the year 1903 provides that "The trustees
shall have the power to ex-

elude all children of filthy or vicious habits, or children suffering- from
contagious or infectious diseases, and also to establish separate schools for
Indian children and for children of Mongolian or Chinese descent; when
separate schools are established, Indian, Chinese, or Mongolian children must
not be admitted into any other school."1 The school board of San Francisco,
pursuant to this statute, passed an order under date of October 11, 1906,
requiring all pupils of Mongolian descent in the city to attend the oriental school
on Clay Street, in the burned section of the city. The Secretary of Commerce and
Labor, in his report to the President of November 26, 1906, said: "If the action of
the Board stands, then, and if no schools are provided in addition to the one
mentioned, it seems that a number of Japanese children will be prevented from
attending the schools and will have to resort to private instruction."

It is said by United States Senator Fulton, of Oregon,2 that the Japanese
excluded from the public schools provided for white children in San Francisco
were very largely adults who, because they were beginners, necessarily entered
the primary grades, and, in consequence, were brought into intimate association
with the young white children of those grades. This is urged as a reason why
the school board had the right in their discretion to relegate to the oriental
school on Clay Street ninety-three Japanese students who attended the various
schools in that city from July, 1906, until the following October. There is
considerable force in this contention. The state

1 School Law of California, Art. X, Section 1662.

2 North American Review, December 21, 1906.

is under no legal obligation to create schools even for its native children; and it
has been held that it is within its power and discretion, and not in violation of
the Fourteenth Amendment to the Constitution, to create separate schools for
negroes, affording them the same opportunities for education in those schools
as it does the white children.1

The treaty provides that "As respects rights of residence and travel, the
possession of goods and effects of any kind, the succession to personal
property and the disposal of property of any sort, the citizens or subjects of
each country shall enjoy in the other the same privileges, liberties, and rights as,
and to be subject to no higher imposts and charges than, native subjects or
citizens of the most favored nation." It would seem that the rights of residence,
without any limitation under this provision, secured to the children of Japanese
immigrants the same privileges, liberties, and rights in the schools as were
enjoyed by the children of our own citizens. But Mr. Richard Olney, who as
Secretary of State in Mr. Cleveland's administration negotiated the treaty,
contends that the final clause reserved a right and discretion in the state
authorities of California to do exactly what they did do with reference to
Japanese pupils. This clause provides: "It is, however, understood that the
stipulations contained in this and the preceding article do not in any way affect
the laws, ordinances, and regulations in regard to trade, the

1 Roberts v. City of Boston, 5 Cashing, 598; King v. Gallagher, 93 N. Y., 438;
Ward v. Flood, 48 Calif., 36; Coryet v. Carrier, 48 Ind., 327; Claybrook v.
Owensboro, 16 Fed. Reporter, 297.

immigration of laborers, police, and public security, either in force or which may
be hereafter enacted in either of the two countries." The word "police " when
used in connection with the word "powers " is an apt phrase, well defined in law
as covering all of the powers reserved to the states by the Constitution. In the
connection in which this word is used, this would probably be a reasonable
construction of the word, and it may be that the action of the Board of Education
of the City of San Francisco was within the reservation of rights provided by the
treaty.1

It is certain, however, that the founders of our Republic did not contemplate for
a moment the acquisition, through the war power by treaty, of extensive
countries in Asia peopled by millions of people, and their rule by Congress, not
pursuant to the Constitution, but as subject people. Gouverneur Morris, to his
great discredit, writing to his friend. Henry Livingston, at the time of the
purchase of Louisiana, discloses the fact that in wording Article 4, Section 3,
subdivision 2, giving Congress the power to dispose of and make all needful
rules and regulations respecting the territory or other property belonging to the
United States, he intended to use language which would allow the United States
to acquire such territory and rule such people as subject people. "But," he says,
"candor obliges me to add my belief that had it been more pointedly expressed
a strong opposition would have been made." He apparently understood the
views of the other members of the Convention, and he knew if such a purpose 1
The Japanese Immigrant Case, 189 U. S., 86, 97, of opinion.

was suspected that the provision would be rejected, so he resorted to a
subterfuge to inject into the Constitution a clause which the United States
Supreme Court in our day has construed as enabling us to rule tens of millions
of human beings as subject people.

Speaking of the war power John Quincy Adams, in the House of
Representatives in 1836, well said: "This power is tremendous. It is strictly
constitutional, but it breaks down every barrier so anxiously erected for the
protection of liberty and of life." We protected slavery in our Constitution,
nourished it for over seventy years, and destroyed it only by a terrible war
which brought in its train evils that still threaten the very life of our Republic.
We are sowing seed of the same kind in the acquisition of colonial territory, and
in the rule of millions of people according to the principles of Russian and
Asiatic despotism. The treaty power is a power which can be exercised with
such dangerous results, that well might it be guarded most jealously by the
American people against the ambitions of men who would make of our people a
world power, even at the expense of destroying the spirit if not the letter of the
Constitution.