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making power of the United States to other matters and in other parts of the national domain.
It is obvious that three distinct questions were raised by the claim originating with Japan and presented by our national government to the courts in San Francisco. The first and second were merely questions of construction of the treaty. Was the right to attend the primary schools a right, liberty, or privilege of residence? and, if so, was the limitation of Japanese children to the oriental school and their exclusion from the ordinary schools a deprivation of that right, liberty, or privilege? These questions of construction, and especially the second, are by no means free from doubt; but as they concern only the meaning of a particular clause in a particular treaty they are not of permanent importance, and, the particular occasion for their consideration having passed, they need not now be discussed.
The other question was whether, if the treaty had the meaning which the government of Japan ascribed to it, the government of the United States had the constitutional power to make such a treaty agreement with a foreign nation which should be superior to and controlling upon the laws of the state of California. A correct understanding of that question is of the utmost importance not merely as regards the state of California, but as regards all states and all citizens of the Union.
There was a very general misapprehension 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 children to its schools. No such question was involved. That 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 its public 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 foreign nation residing in American territory equality of treatment with the citizens of other foreign nations, so that if any state chooses to extend privileges to alien residents as well as to 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. The effect of such a treaty, in respect of education, is not positive and compulsory; it is negative and prohibitory. 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 alien children, you must not exclude these particular alien children."
It has been widely asserted or assumed that this treaty provision and its enforcement involved some question of state's rights. There was and is no question of state's rights involved, unless it be the question which was settled by the adoption of the constitution.
This will be apparent upon considering the propositions which I will now state:
1. The people of the United States, by the constitution of 1787, vested the whole treaty-making power in the national government. They provided:
The president shall have power, by and with the advice and consent of the senate, to make treaties, provided two-thirds of the senators present concur. (Art. II, sec. 2.)
No state shall enter into any treaty, alliance or confederation; * * * No state shall, without the consent of congress,
enter into any agreement or compact with another state, or with a foreign power. (Art. I, sec. 10.)
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 any thing in the constitution or laws of any state to the contrary not withstanding. (Art. VI.)
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Legislative power is distributed: upon some subjects the national legislature has authority; upon other subjects the state legislature has authority. Judicial power is distributed: in some cases the federal courts have jurisdiction, in other cases the state courts have jurisdiction. Executive power is distributed: in some fields the national executive is to act; in other fields the state executive is to act. The treaty-making power is not distributed; it is all vested in the national government; no part of it is vested in or reserved to the states. In international affairs there are no states; there is but one nation, acting in direct relation to and representation of every citizen in every state. Every treaty made under the authority of the United States is made by the national government, as the direct and sole representative of every citizen of the United States residing in California equally with every citizen of the United States residing elsewhere. It is, of course, conceivable that, under pretense of exercising the treaty-making power, the president and senate might attempt to make provisions regarding matters which are not proper subjects of international agreement, and which would be only a colorable--not a real-exercise of the treaty-making power; but so far as the real exercise of the power goes, there can be no question of state rights, because the constitution itself, in the most explicit terms, has precluded the existence of any such question.
2. Although there are no express limitations upon the treatymaking power granted to the national government, there are certain implied limitations arising from the nature of our government and from other provisions of the constitution; but those implied limitations do not in the slightest degree touch the making of treaty provisions relating to the treatment of aliens within our territory.
In the case of Geofroy v. Riggs, which, in 1889, sustained the rights of French citizens under the treaty of 1800 to take and hold real and personal property in contravention of the common law and the statutes of the state of Maryland, the supreme court of the United States said:
That the treaty power of the United States extends to all proper subjects of negotiation between our government and the governments of other nations is clear. * * * The treaty power, as expressed in the constitution, is in terms unlimited except by those restraints which are found in that instrument against the action of the government or of its departments, and those arising from the nature of the government itself and of that of the states. It would not be contended that it extends so far as to authorize what the constitution forbids, or a change in the character of the government, or in that of one of the states, or a cession of any portion of the territory of the latter without its consent. But with these exceptions it is not perceived that there is any limit to the questions which can be adjusted touching any matter which is properly the subject of negotiation with a foreign country.
3. Reciprocal agreements between nations regarding the treatment which the citizens of each nation shall receive in the territory of the other nation are among the most familiar, ordinary and unquestioned exercises of the treaty-making power. To secure the citizens of one's country against discriminatory laws and discriminatory administration in the foreign countries where they may travel or trade or reside is, and always has been, one of the chief objects of treaty making, and such provisions always have been reciprocal.
During the entire history of the United States provisions of this description have been included in our treaties of friendship, commerce and navigation with practically all the other nations of the world. Such provisions had been from time immemorial the subject of treaty agreements among the nations of Europe before American independence; and the power to make such provisions was exercised without question by the Continental Congress in the treaties which it made prior to the adoption of our constitution. The treaty of 1778 with France, made between the Most Christian King and the thirteen United States of North America by name, contained such provisions. So did the treaty of 1782 between Their High Mightinesses the StatesGeneral of the United Netherlands and the thirteen United States of America by name.
The treaty of 1785 with Prussia, ratified by the Continental Congress on the 17th of May, 1786, contained an exercise of the same kind of power. Mr. Bancroft Davis summarizes the provisions of this character in the Prussian treaty in these words:
The favored nation clause put Russia on the best footing in the ports of Charleston, Boston, Philadelphia and New York, no matter what the legislatures of South Carolina, Massachusetts, Pennsylvania, or New York might say. Aliens were permitted to hold personal property and dispose of it by testament, donation, or otherwise, and the exaction of state dues in excess of those exacted from citizens of the state in like cases were forbidden. The right was secured to aliens to frequent the coasts of each and all the states, and to reside and trade there. Resident aliens were assured against state legislation to prevent the exercise of liberty of conscience and the performance of religious worship; and when dying, they were guaranteed the right of decent burial and undisturbed rest for their bodies.
It is not open to doubt that when the delegates of these thirteen states conferred the power to make treaties upon the new national government in the broadest possible terms and without any words of limitation, the subjects about which they themselves had been making the treaties then in force were included in the power.
The treaty of July 28, 1868, beween the United States and Chinathe celebrated Burlingame treaty-contained, in the sixth article, a provision in the very words of the Japanese treaty. That article provided:
Citizens of the United States visiting or residing in China shall enjoy the same privileges, immunities or exemptions in respect to travel or residence as may there be enjoyed by the citizens or subjects of the most favored nation. And, reciprocally, Chinese subjects visiting or residing in the United States, shall enjoy the same privileges, immunities, and exemptions in respect to travel or residence, as may there be enjoyed by the citizens or subjects of the most favored nation.
In the case of Tiburicio Parrot (6 Sawyer, 368) the circuit court of the United States said, Mr. Justice Sawyer reading the opinion:
As to the point whether the provision in question is within the treatymaking power, I have as little doubt as upon the point already discussed. Among all civilized nations, in modern times at least, the treaty-making power has been accustomed to determine the terms and conditions upon which the subjects of the parties to the treaty shall reside in the respective countries, and the treaty-making power is conferred by the Constitution in unlimited terms. Besides, the authorities cited on the first point fully cover and determine this question. If the treaty-making power is authorized to determine what foreigners shall be permitted to come into and reside within the country, and who shall be excluded, it must have the power generally to determine and prescribe upon what terms and conditions such as are admitted shall be permitted to remain.
And regarding the same treaty the supreme court of the United States remarked, in the case of Baldwin v. Franks (120 U.S., 679):
That the United States have power under the constitution to provide for the punishment of those who are guilty of depriving Chinese subjects of any of the rights, privileges, immunities, or exemptions guaranteed to them by this treaty we do not doubt.
4. It has been settled for more than a century that the fact that a treaty provision would interfere with or annul the laws of a state as to the aliens concerning whom the provision is made, is no impeachment of the treaty's authority.
The very words of the constitution, that the judges in every state shall be bound by a treaty “any thing in the constitution or laws of any state to the contrary notwithstanding,” necessarily imply an expectation that some treaties will be made in contravention of laws of the states. Far from the treaty-making power being limited by state laws, its scope is entirely independent of those laws; and whenever it deals with the same subject, if inconsistent with the law, it annuls the law. This is true as to any laws of the states, whether the