be found contrary to that treaty, are by force of the said article prostrated before the treaty. 3d. That, consequently, the treaty of 1783 has superior power to the Legislature of any State, because no Legislature of any State has any kind of power over the Constitution, which was its creator. 4th. That it is the declared duty of the State judges to determine any Constitution or laws of any State contrary to that treaty (or any other), made under the authority of the United States, null and void. National or Federal judges are bound by duty and oath to the same conduct. In the case of Fairfax v. Hunter, in 1812, Mr. Justice Story delivering the opinion, the Supreme Court of the United States sustained the title of a British subject, under the provisions of the treaty of 1794, in direct contravention of the laws of the State of Virginia. In the case of Chirac v. Chirac, in 1817, Chief Justice Marshall delivering the opinion, the Supreme Court of the United States sustained the title of a French subject to real estate in Maryland, in direct contravention of the laws of that State. A long line of cases have followed in the Supreme Court applying the provisions of various treaties and maintaining without exception the unvarying rule that the State statute falls before the treaty. It equally appears from these cases that the treaty provisions which were sustained by the Supreme Court and the State laws which were declared void, so far as they conflicted with a treaty, related to matters regarding which Congress had no power to legislate, but upon which, in the distribution of legislative powers under the Constitution, the States, and the States alone, had power to legislate. 5. Since the rights, privileges, and immunities, both of person and property, to be accorded to foreigners in our country and to our citizens in foreign countries are a proper subject of treaty provision and within the limits of the treaty-making power, and since such rights, privileges, and immunities may be given by treaty in contravention of the laws of any State, it follows of necessity that the treatymaking power alone has authority to determine what those rights, privileges, and immunities shall be. No State can set up its laws as against the grant of any particular right, privilege, or immunity any more than against the grant of any other right, privilege, or immunity. No State can say a treaty may grant to alien residents equality of treatment as to property but not as to education, or as to the exercise of religion and as to burial but not as to education, or as to education but not as to property or religion. That would be substituting the mere will of the State for the judgment of the President and Senate in exercising a power committed to them and prohibited to the States by the Constitution. There was, therefore, no real question of power arising under this Japanese treaty and no question of State rights. There were, however, questions of policy, questions of national interests and of State interests, arising under the administration of the treaty and regarding the application of its provisions to the conditions existing on the Pacific coast. In the distribution of powers under our composite system of government the people of San Francisco had three sets of interests committed to three different sets of officers their special interest as citizens of the principal city and commercial port of the Pacific coast represented by the city government of San Francisco; their interest in common with all the people of the State of California represented by the Governor and Legislature at Sacramento; and their interests in common with all the people of the United States represented by the National Government at Washington. Each one of these three different governmental agencies had authority to do certain things relating to the treatment of Japanese residents in San Francisco. These three interests could not be really in conflict; for the best interest of the whole country is always the true interest of every State and city, and the protection of the interests of every locality in the country is always the true interest of the nation. There was, however, a supposed or apparent clashing of interests, and, to do away with this, conference, communication, comparison of views, explanation of policy and purpose were necessary. Many thoughtless and some mischievous persons have spoken and written regarding these conferences and communications as if they were the parleying and compromise of enemies. On the contrary, they were an example of the way in which the public business ought always to be conducted; so that the different public officers respectively charged with the performance of duties affecting the same subjectmatter may work together in furtherance of the same public policy and with a common purpose for the good of the whole country and every part of the country. Such a concert of action with such a purpose was established by the conferences and communications between the national authorities and the authorities of California and San Francisco which followed the passage of the Board of Education resolution. There was one great and serious question underlying the whole subject which made all questions of construction and of scope and of effect of the treaty itself—all questions as to whether the claims of Japan were well founded or not; all questions as to whether the resolution of the school board was valid or not - seem temporary and comparatively unimportant. It was not a question of war with Japan. All the foolish talk about war was purely sensational and imaginative. There was never even friction between the two Governments. The question was: What state of feeling would be created between the great body of the people of the United States and the great body of the people of Japan as a result of the treatment given to the Japanese in this country? What was to be the effect upon that proud, sensitive, highly civilized people across the Pacific, of the discourtesy, insult, imputations of inferiority and abuse aimed at them in the columns of American newspapers and from the platforms of American public meetings? What would be the effect upon our own people of the responses that natural resentment for such treatment would elicit from the Japanese? The first article of the first treaty Japan ever made with a western power provided: There shall be a perfect, permanent, and universal peace and a sincere and cordial amity between the United States of America on the one part, and the empire of Japan on the other part, and between their people respectively, without exception of persons or places. Under that treaty, which bore the signature of Matthew Calbraith Perry, we introduced Japan to the world of western civilization. We had always been proud of her wonderful development proud of the genius of the race that in a single generation adapted an ancient feudal system of the Far East to the most advanced standards of modern Europe and America. The friendship between the two nations had been peculiar and close. Was the declaration of that treaty to be set aside? At Kurihama, in Japan, stands a monument to Commodore Perry, raised by the Japanese in grateful appreciation, upon the site where he landed and opened negotiations for the treaty. Was that monument henceforth to represent dislike and resentment? Were the two peoples to face each other across the Pacific in future years with angry and resentful feelings? All this was inevitable if the process which seemed to have begun was to continue, and the Government of the United States looked with the greatest solicitude upon the possibility that the process might continue. It is hard for democracy to learn the responsibilities of its power; but the people now, not governments, make friendship or dislike, sympathy or discord, peace or war, between nations. In this modern day, through the columns of the myriad press and messages flashing over countless wires, multitude calls to multitude across boundaries and oceans in courtesy or insult, in amity or in defiance. Foreign officers and ambassadors and ministers no longer keep or break the peace, but the conduct of each people toward every other. The people who permit themselves to treat the people of other countries with discourtesy and insult are surely sowing the wind to reap the whirlwind, for a world of sullen and revengeful hatred can never be a world of peace. Against such a feeling treaties are waste paper and diplomacy the empty routine of idle form. The great question which overshadowed all discussion of the treaty of 1894 was the question: Are the people of the United States about to break friendship with the people of Japan? That question, I believe, has been happily answered in the negative. The PRESIDENT. I am instructed by the Secretary, under whose control I am, to announce that the general business of the Society will be postponed until Saturday morning, and that there will be a meeting of the Executive Council this afternoon upon the adjournment of this session. We will now proceed to the first number on the program Mr. THEODORE P. ION. Mr. President, may I interrupt for a moment? The PRESIDENT. Certainly. Mr. IoN. I am the professor of international law of the Boston University Law School. I was not aware that the Japanese question was coming up, and am not prepared to answer at this time what has been said on that subject. I would like to ask if there is to be discussion on this question. If so, I should like to read, if possible, a statement in answer to that which has been made this morning. I could be prepared to do that to-morrow morning or to-morrow afternoon. I think that some kind of an answer should be made, if possible. The PRESIDENT. There will be an opportunity for discussion upon that subject at the session which begins this evening at 8 o'clock. Mr. IoN. Then I will be prepared at that time to present a paper. The PRESIDENT. The first number on the program is the question: "Would immunity from capture during war of nonoffending private property upon the high seas be in the interest of civilization?" Upon that subject a paper will be read by Admiral Stockton. ADDRESS OF REAR-ADMIRAL C. H. STOCKTON, U. S. N., Mr. President and Members of the Society: Before starting on this paper, I may say that it represents my views as an individual member of the Society, and not as a representative of the profession of which I am proud to be a member. This subject is a timely one from the fact that we are on the eve of the meeting of the Second International Conference at The Hague, the First Conference in 1899 having voted that 1 This address was published in THE AMERICAN JOURNAL OF INTERNATIONAL LAW, I:930. |