Federal Usurpation (1908)

Franklin Pierce (1853-19XX)

Treaty Power and State Rights

“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.”


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 today. 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 determined. 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.”163

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.164 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 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.”165

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 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.”l66 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 21st and drafted 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.”167 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 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.”l68

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 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.'”169

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.”170

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.”171 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 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.”172

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 of their own constitution, or an act of their legislature authorized by their constitution.173

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. 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, Hilton, 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,174 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 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 courts 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.175 In Hauenstein v. Lynham,176 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 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 says177 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.178 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 becomes the absolute law of that state. Treaties are entitled to a liberal construction in favor of those claiming under them.179 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, 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,180 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.181

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 exelude 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.”182 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,183 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 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.184

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 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.185

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 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.


   163.   George Ticknor Curtis, Const. History of the U. S. 2d ed., p. 554.
   164.   Rhode Island v. Mass., 12 Peters, 723; ex parte Williams, 114 U. S. 422; Maxwell v. Dow, 176 U. S. 602.
   165.   Journals of Congress, ed. of 1801, vol. xii, p. 24, March 21, 1787.
   166.   Journals of Cong., ed. of 1801, vol. xii, p. 35.
   167.   Elliot’s Deb., vol. i, pp. 265, 266.
   168.   Blackstone, vol. iv, ch. v, p. 67.
   169.   Elliot’s Deb., vol. iv, pp. 278, 279.
   170.   Elliot’s Deb., vol. ii, p. 409.
   171.   Elliot’s Deb., vol. iv, p. 464.
   172.   People v. Gerke & Clark, 5 Calif. Reports, p. 384.
   173.   Geofroy v. Riggs, 133 U. S. 258, 267.
   174.   Ware v. Hilton, 3 Dallas, 211.
   175.   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; 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.
   176.   Hauenstein v. Lynham, 100 U. S. 490.
   177.   Holmes v. Jennison et al., 14 Peters, 546, 569.
   178.   Mayor of New Orleans v. U. S., 10 Peters, 66; License Cases, 5 Howard (513) per Daniel J.; Passenger Cases, 7 Howard, 783 (507).
   179.   Tucker v. Alexandroff, 183 U. S. 424, 437; Chew Keong v. United States, 112 U. S. 540 of opinion.
   180.   Foster v. Nielson, 2 Peters, 253.
   181.   Baldwin v. Franks, 120 U. S. 678.
   182.   School Law of California, Art. X, Section 1662.
   183.   North American Review, December 21, 1906.
   184.   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.
   185.   The Japanese Immigrant Case, 189 U. S. 86, 97, of opinion.