status of the alien, but not the law of the State, so that the law of the State was upheld, and the alien was recognized as no longer an alien as to the matter of inheritance, but quoad the right of inheritance as occupying the position of a native.

§ 364. Another recent case decided in 1912 is that of Rocca v. Thompson. While the Court decided this case on the construction of a treaty, an examination of the case must show to any candid mind that the decision of the direct question between the treaty and the law of the State could have been made by the Court, and would have been justified by the facts of the case. This was an appeal from the Supreme Court of California. It represented a conflict between a law of California establishing a public administrator, who was an officer of the State, and a treaty between Italy and the United States. Article XVI of this treaty required on the death of an Italian citizen that notice should be given to the Italian Consul or consular agent. Article XVII is as follows:

"The respective Consuls General, Consuls, Vice Consuls and Consular Agents, as likewise the Consular Chancellors, Secretaries, Clerks or Attachés, shall enjoy in both countries, all the rights, prerogatives, immunities, and privileges, which are or may hereafter be granted to the officers of the same grade, of the most favored nation."

The Italian Consul, under the most favored nation clause, claimed that the privilege of administration should be accorded him because by a treaty between the United States and the Argentine Republic, it was conferred upon the Consul of that country in the following language:

"If any citizen of either of the two contracting parties shall die without will or testament in any of the territories of the other, the Consul General or Consul of the nation to which the deceased belonged, or the representative of such Consul General or Consul in his absence, shall have the right to intervene in the possession, administration, and judicial liquidation of the estate of the deceased conformably with the laws of the country, for the benefit of the creditors and legal heirs." 2

1 223 U. S. 318, 56 L. ed. 215, 32 S. C. 207.

Author's italics.

Justice Day, who delivered the opinion of the Court, decided the case upon the construction of the words of the treaty which are italicized above. His opinion is a masterpiece of critical dissection of the words of the treaty which resulted in sustaining the law of California in the right of the public administrator to administer on the estate of the deceased, and while the learned justice's analysis of the language of the treaty may be accepted as technically correct, it can hardly be doubted that if the Supreme Court, as is claimed by many, had for years settled the question of the supremacy of a treaty over the laws of a State, that this case could have been and would have been promptly decided in favor of sustaining the treaty.

§ 365. The case of Patsone v. Pennsylvania,1 decided in 1913 has likewise a strong bearing on the view we are presenting. The State of Pennsylvania in the exercise of its police powers for the protection of game within its boundaries, as was claimed, passed a law making it "unlawful for any unnaturalized foreign born resident to kill any wild bird or animal except in defense of person or property, 'and to that end' makes it unlawful for such foreign born person to own or be possessed of a shot gun or rifle; with a penalty of $25.00," etc. It was claimed that this statute was in violation of the treaty between the United States and Italy of February 26, 1871. Article III of the treaty was the clause which was invoked in behalf of the defendant. This Article asserted security for the persons and property of Italians, and that they "shall enjoy in this respect the same rights and privileges as are or shall be granted to the natives, on their submitting themselves to the conditions imposed upon the natives." Justice Holmes, in delivering the opinion of the Court, said:

"There remains then only Article 3 (of the treaty). With regard to that it was pointed out below that the equality of rights that it assures is equality only in respect of protection and security for persons and property. The prohibition of

1232 U. S. 145, 34 S. C. 281. See also Bondi v. Mackay, 87 Vt. 271.

a particular kind of destruction and of acquiring property in instruments intended for that purpose established no inequality in either respect. It is to be remembered that the subject of this whole discussion is wild game, which the State may preserve for its own citizens if it pleases. Geer v. Connecticut, 161 U. S. 519, 529.

We see nothing in the treaty that purports or attempts to cut off the exercise of their powers over the matter by the States to the full extent. Compagnie Française de Navigation a Vapeur v. State Board of Health, 186 U. S. 380, 394, 395,"

Here the police law of the State was upheld. It is true the conflict between that law and the treaty is not so clear as in the case of Compagnie Française v. Board of Health, supra, but the learned Judge cites the latter case as sustaining his position, and endorses the view that wild game is subject to the police power of the State, "which the State may preserve for its own citizens if it pleases." 2

These are the most recent cases which have been decided by the Court, and in every one of them the police law of the State was upheld.

If the question of the supremacy of treaties over the laws of the States had been settled by this Court for years, as claimed, the doctrine could have been reaffirmed most properly in these cases, for the opportunity seemed clear in two of them at least, but in all three the police law of the State was upheld.

1 Author's italics.

2 See also Olsen v. Smith, 195 U. S. 344, 49 L. ed. 224, 25 S. C. 52

CHAPTER XIII

CONCLUSIONS. LIMITATIONS ON THE TREATY-MAKING POWER. IF GREATER POWER IS REQUIRED THE REMEDY IS BY CONSTITUTIONAL AMENDMENT

§ 366. The investigations made in the previous chapters of this book, the consideration of the Constitution as a whole, together with the decisions of the Supreme Court, and the opinions of jurists and statesmen on the different phases of this subject, lead to the conclusion that the following are proper and constitutional limitations upon the treaty-making power under the Constitution of the United States.

I. That a treaty cannot take away or impair the fundamental rights and liberties of the people secured to them in the Constitution itself, or in any Amendment thereof.

No question was more seriously considered at the time of the making of the Constitution than that which affected the civil and religious liberties inherited by our ancestors from the mother country. These were regarded as safe in the keeping of the States. The advocates of a strong centralized government endowed with energies unknown to the government under the Articles of Confederation, were met in debate upon the hustings and in the forum by the advocates of State sovereignty, who feared the loss of personal liberty in the adoption of the new government. The former looked to the development of the country through the strength of the government; the latter to the development of the individual who was to make the government. The one believed that the country could best be developed by a strong government, in which each individual

would share its benefits. The other believed that in proportion to the strength of the individual would be the strength of the government composed of such individuals. Both ideas were patriotic, and both contained much of sound reasoning. Our recent separation from Great Britain, however, with its monarchical form of government created a natural fear among the people of the establishment of a monarchy in America. The spirit of liberty was already aroused in America, and in France the rumblings of the approaching revolution could be heard and its influence was permeating the old and the new world in its powerful appeals for greater liberty of the masses. Throughout America, in every Colony, the struggle for the adoption of a new constitution, confessedly for the purpose of strengthening the government, caused an uneasiness among the people of the several States lest the new government with its new strength might curtail the liberties which they had fought to secure from Great Britain, and for which the whole country at that time was eagerly seeking security. Patrick Henry demanded a Bill of Rights for the Constitution before it should be adopted, that the rights of the people might be secured. Mr. Jefferson, though in France, was familiarizing the people of America with the conditions that were stirring the French nation to the first steps of revolution. And so, when the Constitutional Convention had finally adopted the Constitution without a Bill of Rights, its ratification by the different States became a question of great doubt. The struggle was long and doubtful, but when, under the influence of the Father of his Country, Virginia, by a close vote, ratified the instrument, the victory was won. In their ratification many of the States recommended Amendments to be adopted as a condition of their ratification.

§ 367. The action of the States in this respect is most interesting. The position of a few of them will be given. Massachusetts, New Hampshire, Rhode Island, Virginia, South Carolina, and New York in their acts of ratification asked for Amendments to the Constitution to secure to the people of the