In the same address in speaking of the rights guar

anteed trough treaty, at page 283, he says: "Since such

rights, privileges and immunities may be given by treaty, it

follows of necessity that the treaty-making power alone has the authority to determine what these rights, privileges and immunities shall be."

In discussing the controversy arising from the passing of the school ordinance in San Fran cisco, and the interpretation of the treaty in force in Japan at that time he said at page 283: "There was general mi sapprehension of what this treaty really undertook to do. It was assumed that in making and asserting the validity of the treaty of 1894, the United States was asserting the right to compel the state of California to admit Japanese chuldren to its schools. No such question was involved. The treaty did not, by any possible construction, assert the authority of the United States to compel any state to maintain public schools, or to extend the privileges of the schools to Japanese children or to the children of any alien residents. The treaty did assert the right of the United States, by treaty, to assure to the citizens of a foreigner residing in American territory equality of treatment with citizens of other foreign nations, so that if any state chooses to extend

to extend privileges to alien residents as well as citizen residents, the state will be forbidden by the obligation of the treaty to discriminate against the resident citizens of the particular country with which the treaty is made and will be forbidden to deny to them the privileges which it grants to the citizens of other foreign countries.--- It is not a requirement that the state shall furnish education; it is a prohibition against discrimination when the state does choose to furnish education. It leaves every state free to have public schools or not, as it chooses, but it says to every state:'If you provide a system of education which includes aliens, you must not exclude these particular alien children. '"

That there are limits beyond which the treaty power cannot go and beyond which even with the concurrence of all the departments of the government can not make a treaty valid is expressed by Chandler P. Anderson, he says: "These powers, therefore, which are prohibited and those restrictions which are imposed under the constitution, are beyond the reach of the treaty-making power, and not even the concurrence of the legislative and the executive branches of the government would not make valid a treaty which violates such limitations."1

1. Am. Jo. Int. Law, vol. I, p.655