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power. The representatives of the people of the several States are unwilling to confer additional power upon Congress which may be used to enforce treaties which embrace subjects which they believe cannot properly be made the subject of treaties. If the limitations on the treaty-making power were made clear and decisive by the Courts, there can be no doubt that the hesitancy on the part of Congress to act in this matter would be relieved, but it is not at all certain that until such results have been obtained and the whole subject made clear in the matter of the treaty power, that any action will be taken by Congress which may involve the people of the country in additional struggles with this power.

President Harrison in his message referred to, says:

"It would, I believe, be entirely competent for Congress to make offences against the treaty rights of foreigners domiciled in the United States cognizable in the Federal Courts. This has not, however, been done, and the Federal officers and Courts have no power in such cases to interfere either for the protection of a foreign citizen or for the punishment of his slayers."

This is true, but it may be asked why should an additional tribunal be provided to mete out punishment to the offender when the law that he has offended is generally the law of the State? It may be answered that perhaps the State authorities will not prosecute him, or will, from negligence or inaction, fail to prosecute him as he ought to be. Since the States in this respect are, in effect, the agents of the Federal Government, if they fail to do their duty the Government is in no worse position than if one of its own courts should fail to do its duty in this regard. It would seem that where the States, therefore, whose duty it is to prosecute the offender, fail to do so, the Government of the United States must answer for it through diplomatic channels just as if the authorities of the United States, if a United States Court had jurisdiction of the case, should fail to prosecute the offender with diligence. While as a question of constitutional power, therefore, it is seen there may be no objection to Congress taking such action, it may be

doubted whether it would accomplish what would be expected from such a course, except in occasional instances, and it is doubtful whether Congress will take such action until the question of the limitations upon the treaty power are more explicitly declared in the decisions of the Courts.

CHAPTER X

THE RELATION OF THE TREATY-MAKING POWER TO THE

POLICE POWER OF THE STATES

§ 246. This division of our subject is as follows:

Personal and property rights of every kind and description may be the subject of treaties. Whenever the control or protection of such rights is, under the Constitution, confided to any department of the government 1 or to a State, such department or the State, as the Constitutional repository of such rights, cannot be ousted of their jurisdiction and have the same transferred to the treaty-making power.

The guarantee of certain personal and civil rights to the citizens of the United States and the prohibition on the United States to deny others to the people, as set forth in the Constitution, and in the Amendments thereto, has been discussed elsewhere.

This branch of our subject, however, is more limited, and we are now to consider in addition to the rights specifically secured in the Constitution and the Amendments, those rights which may pertain to the citizen as a citizen of a State. And this touches upon the dual status of citizenship, which pertains to every citizen in the State; a status unknown in many countries, and which to those who are unacquainted with our system of government is difficult to comprehend, for every citizen of the United States is entitled to the protection of the Federal Government in all matters which pertain to his citizenship of the United States, and every citizen of a State in the United States

1 Rights confided to the various departments of the government have been considered in Chapter V.

is entitled to like protection of all rights which pertain to him as a citizen of such State.

§ 247. The one man owes allegiance to two powers, the Government of the United States, and the Government of his State, for he is a citizen of each. In the discharge of duties pertaining to the government of the United States or in the transaction of business which pertains to the government of the United States, wherever in fact his actions touch a right or duty which comes to him from the government of the United States, he is exercising rights or duties as a citizen of the United States. And so where he is performing a duty that comes to him as a citizen of the State and not of the United States, or is engaged in any business which does not touch the government of the United States in any respect, but which is controlled and derived from the State itself, in such capacity he is acting as a citizen of the State and as such entitled to the protection of the State. If a man goes into the Federal Court to practice law, he goes as a citizen of the United States; if he goes into the State Court to practice law he goes as a citizen of the State.1 The recognition of this dual citizenship is merely a recognition of the division of the powers of government in the United States. In the Slaughter House Cases,2 the Court defined the rights of a citizen of the United States as follows: "Those which owe their existence to the Federal Government, its national character, its Constitution, or its laws." Chief Justice Waite in United States v. Cruikshank says:

3

"We have in our political system of the United States the government of each of the several States. Each one of these governments is distinct from the others, and each has citizens of its own who owe it allegiance and whose rights it must protect. The same person may be at the same time a citizen of the United States and a citizen of the State, but his rights of citizenship under one of these governments will be different from those he has under the other."

1 Bradwell v. State, 16 Wallace, 130, 21 L. ed. 442. 216 Wallace, 36, 21 L. ed. 394.

$92 U. S. 542, 23 L. ed. 588.

§ 248. What rights, then, peculiarly belong to the citizen as a citizen of the State? The Tenth Amendment to the Constitution fixes these: "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people." These reserved powers, or the rights flowing from them, are those with which the citizen of the State is clothed, and which he, as such citizen, has the right to enjoy under the control of the State. Among these reserved powers may be included the police power of the State. The Tenth Amendment does not create powers, it merely protects certain powers from aggression by the Federal Government. If the Tenth Amendment had never been adopted, it would still be true that the police powers of the State would exist, for they are inherent powers in every State that cannot be surrendered, and so these reserved powers often include the original, inherent police powers of the State. Judge Cooley has well stated the principle: 1

"In the American constitutional system, the power to establish the ordinary regulations of police has been left with the individual States, and it cannot be taken from them, either wholly or in part, and exercised under legislation of Congress. Neither can the national government, through any of its departments or officers, assume any supervision of the police regulations of the States. All that the Federal authority can do is to see that the States do not, under cover of this power, invade the sphere of national sovereignty, obstruct or impede the exercise of any authority which the Constitution has confided to the nation, or deprive any citizen of rights guaranteed by the federal Constitution."

And he adds:

"But while the general authority of the State is fully recognized, it is easy to see that the power might be so employed as to interfere with the jurisdiction of the general government; and some of the most serious questions regarding the police of the States concern the cases in which authority has been conferred upon Congress. In those cases it has sometimes been claimed that the ordinary police jurisdiction is by necessary 1 "Constitutional Limitations," 831 (Seventh Edition).

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