66

against neutrality, offenses against foreign diplomatic officers, and the counterfeiting of foreign securities have been held to violate international law. Legislation of Congress punishing offenses no guaranteed states' rights and many acts for the carrying out of treaties have been sustained. Of this character are acts providing for extradition and for the return of deserting seamen. The conclusion of treaties may unquestionably extend the power of Congress to provide for the exercise of police power within the states. Thus although the court held unconstitutional an act of 1907 rendering persons criminally liable for harboring immigrant women as prostitutes within a period of three years of landing, it indicated that if the law had been in pursuance of a treaty it would have been valid.67 The Mann White Slave Act of 191068 actually includes provisions in pursuance of the International White Slave Convention of 1904. So also an act for the protection of migratory birds was held unconstitutional but the court has sustained a similar act passed in pursuance of a treaty with Great Britain.70

"The treaty in question," says Mr. Justice Holmes, "does not contravene any prohibitory words to be found in the Constitution. The only question is whether it is forbidden by some invisible radiation from the general terms of the 10th Amendment. We must consider what this country has become in deciding what that amendment has reserved: . . . Valid treaties, of course, 'are as binding within the territorial limits of the states as they are effective throughout the dominion of the United States.'" Baldwin v. Franks, 120 U. S. 678, 683. No doubt the great body of private relations usually falls within the control of the state, but a treaty may override its power. We do not have to invoke the later developments of constitutional law for this proposition; it was recognized as early as Hopkirk v. Bell, 3 Cranch 454, with regard to statutes of limitation, and even earlier as to confiscation, in Ware v. Hylton, 3 Dall. 199. It was assumed by Chief Justice Marshall with regard to the escheat of land to the state in Chirac v. Chirac, 2 Wheat. 259, 275; Hauenstein v. Lynham, 100 U. S. 483; Geofroy v. Riggs, 133 U. S. 258; Blythe v. Hinckley, 180 U. S. 333, 340. So, as to a limited jurisdiction of foreign consuls within a state. Wildenhus Case, 120

65 U. S. v. Arjona, 120 U. S. 479.

66 Mo. v. Holland, 252 U. S. 416 (1920).

67 Ullman v. U. S., 213 U. S. 138 (1909), declaring act of Feb. 20, 1907, sec. 3 (34 stat. 898), void.

68 Act, June 25, 1910, sec. 6, 36 stat. 825.

69 U. S. v. Shauves, 214 Fed. 154; U. S. v. McCullagh, 227 Fed. 288.

70 Mo. v. Holland, 252 U. S. 416 (1920).

U. S. 1. See Re Ross, 140 U. S. 453. Further illustration seems unnecessary, and it only remains to consider the application of established rules to the present case.

"Here a national interest of very nearly the first magnitude is involved. It can be protected only by national action in concert with that of another power. The subject matter is only transitorily within the state, and has no permanent habitat therein. But for the treaty and the statute, there soon might be no birds for any powers to deal with. We see nothing in the Constitution that compels the government to sit by while a food supply is cut off and the protectors of our forests and of our crops are destroyed. It is not sufficient to rely upon the states. The reliance is vain, and were it otherwise, the question is whether the United States is forbidden to act. We are of opinion that the treaty and statute must be upheld. South Dakota, 250 U. S. 118."

Cary v.

The present inability of federal courts to prosecute persons within the states guilty of violating the rights of aliens guaranteed by international law or treaty is not due to a limitation upon national power but to an insufficiency of congressional legislation.71 50. Effect upon Power to Make International Agreements.

The national guarantee of territorial integrity and a republican form of government to the states limits the treaty power. The capacity of the treaty power to cede state territory was discussed in Washington's cabinet. Secretary of State Jefferson maintained that the United States had no right to alienate one inch of the territory of any state" while Secretary of the Treasury Hamilton took the opposite view.72 While admission of the supremacy of treaties granting Indian tribes an exclusive right in reservations within the states73 seems to go far toward admitting the right of the treaty power to alienate state territory, an actual cession was not here in question. In the only case of foreign cession of state territory that has arisen, the adjustment of the Maine boundary by the Webster-Ashburton treaty of 1842, the political expediency if not the constitutional necessity of obtaining the state's consent was admitted. The compensation to be paid Maine and Massa

71 Willoughby, Am. Constitutional System, p. 108; Pomeroy, Const. Law, 9th ed., p. 571; Corwin, National Supremacy, pp. 288-289; Taft, U. S. and Peace, 40 et seq., Gammons, Am. Jl. Int. Law, 11: 6; Moore, Digest, 6: 839 et seq.

72 Jefferson's Anas, March 11, 1792, Wharton, Digest, 2: 66.
73 Worcester v. Ga., 6 Pet. 515 (1832).

chusettes was especially referred to in the treaty." The better opinion seems to hold that state consent must be obtained,75 though in case of necessity, as to end an unfortunate war, a treaty cession without such consent would doubtless stand.76

The interpretation of the guarantee of a "Republican Form of Government" was held by the courts a political question in a case recognizing the legitimacy of the military government set up in Texas after the Civil War." Doubtless a treaty putting a state under a protectorate or otherwise subverting its government could be equally well reconciled with the guarantee. Legally, however, the guarantee unquestionably restricts the treaty power.

The "reserved powers" of the states, however, do not limit the treaty-making power. Powers often claimed to be "reserved powers" may be classified as (1) the power to regulate exclusively state land and natural resources; (2) the power to exercise exclusive control over public services supported by state taxation; (3) the power to exercise police control over classes of persons and businesses within the state in behalf of public safety, health, morals and economic welfare. Treaty provisions often guarantee to aliens rights of entry, residence landholding, inheritance, etc., equal to that of citizens or subjects of the most-favored nation." It has been alleged that such provisions are void in so far as they conflict with the exercise by the States of these "reserved" powers. The issue has been judicially considered in reference to state statutes discriminating against aliens, or aliens of a partic74 Art. V of treaty. See Moore, 5: 172-174, supra, sec. 31. This incident is discussed in Fort Leavenworth Railroad Co. v. Lowe, 114 U. S. 525, 541, quoting Webster's Works, 5: 99, 6: 273.

75 Dicta in Lattimer v. Poteet, 14 Pet. 14 (1840); Geofroy v. Riggs, 133 U. S. 267 (1890); Insular Cases, 182 U. S. 316 (1901); Fort Leavenworth Railroad Co. v. Lowe, 114 U. S. 525, 541; Moore, Digest, 5: 171175; Butler, The Treaty Making Power, 1902, 1: 411-413, 2: 238, 287-294; Corwin, National Supremacy, 130-134; Wright, Am. Jl. Int. Law, 13: 253. 76 Supra, sec. 32.

77 Texas v. White, 7 Wall. 700.

78 Art. XI of the Treaty of 1778 with France and Art. I of the Treaty of 1894 with Japan, superseded by Art. I of the Treaty of 1911, are examples of this type of provision.

83

ular race or nationality (1) in the privilege of owning land," operating mines,80 and taking fish81 and game; 82 (2) in the use of public schools and the right to labor on public works;84 (3) and in the freedom of immigration,85 labor,se personal habits,87 and conduct of business.88 In a few cases dicta damaging to the treaty power have been uttered; 89 sometimes the treaty has been sub

66

79 Fairfax v. Hunter, 7 Cr. 503; Chirac v. Chirac, 2 Wheat. 259 (1817); Society for the Propagation of the Gospel v. New Haven, 8 Wheat. 464 (1823); Carneal v. Banks, 10 Wheat. 259 (1825); California-Japanese controversy, 1913, Corwin, op. cit., p. 232. Art. VII of the treaty of 1853 with France made concessions to this states' right." It allowed Frenchmen to possess land on an equality with citizens "in all the states of the Union where existing laws permit it, so long and to the same extent as the said laws shall remain in force." As to the other states "the President engages to recommend to them the passage of such laws as may be necessary for the purpose of conferring the right.”

80 People v. Noglee, I Cal. 232 (1850).

81 Griggs, Att. Gen., 1898, 22 Op. 214.

82 Patsone v. Pa., 232 U. S. 138, 145, Mo. v. Holland, 252 U. S. 416 (1920).

83 California-Japanese school children controversy, 1906, Corwin, op. cit., p. 217; E. Root, Am. Jl. Int. Law, 1: 273, and editorials, ibid., 1: 150, 449. Art. IV of the Treaty of 1854 with Great Britain indicates that the United States doubted its right to control a state established utility without state consent. The government of the United States further engages to urge upon the state government to secure to the subjects of Her Britannic Majesty the use of the several State Canals on terms of equality with the inhabitants of the United States."

84 Baker v. Portland, 5 Sawyer 566 (1879); Heim v. McCall, 239 U. S. (1915), Am. Jl. Int. Law, 10: 162.

85 Elkinson v. Deliesseline, Leg. Doc. Mass. 1845 (Senate), No. 31, p. 39 (1823), Thayer, Cases in Constitutional Law, p. 1849, Corwin, op. cit., p. 125; Wirt, Att. Gen., 10: 661 (1824); Berrien, Att. Gen., 20: 431 (1831); The Passenger Cases, 7 How. 283 (1849); in re Ah Fong, 3 Sawyer 144; Henderson v. N. Y., 92 U. S. 259 (1875).

86 In re Tiburcio Parrott, 6 Sawyer 349 (1880); Truax v. Raich, 239 U. S. 33, 43 (1915), Am. Jl. Int. Law, 10: 158.

87 Ho Ah Kow v. Nunan, 5 Sawyer 532 (1879).

88 Yick Wo v. Hopkins, 118 U. S. 356 (1886); Compagnie Francaise v. State Board of Health, 186 U. S. 380 (1902). Frequently in these cases the XIV Amendment as well as treaties have been in opposition to the exercise of state powers. See also Rocca v. Thompson, 232 U. S. 318.

89 Taney, C. J., in Holmes v. Jennison, 14 Pet. 540 (1840); The Passenger Cases, 7 How. 283, 465 (1849); Daniels, J., in The License Cases, 5 How. 504, 613; Grier, J., in The Passenger Cases, 7 How. 283 (1849).

91

90

jected to a strained interpretation to save the State's power; "0 but in no case has a clear treaty provision been superseded by the state law. On the contrary, state statutes of this character have frequently been declared void when conflicting with clear treaty provisions. With respect to statutes relating to the control of natural resources and state-supported services, the attitude of the courts has been cautious, with a decided tendency in recent cases to compromise by adopting interpretations of the treaty favorable to the state power. The question, however, has been on the applicability of the treaty, not upon its validity.

92

A more extreme extension of the "reserved powers" doctrine has been put forward in the claim that unlimited discretion in the regulation and taxation of property and inheritances is a state power exempt from interference by the treaty-making power. Treaties of the character mentioned have sometimes conflicted with the alleged exclusive right of the state to regulate the ownership, transmission and inheritance of property within its limits.93 An historical view of the many cases bearing upon this point shows that in the days of Marshall and since the Civil War9 the Supreme Court has uniformly and in no uncertain voice sustained the treaty power as against these alleged states' reserved powers. Only during the period preceding the Civil War was there a wavering, even then confined to dicta.90

90 Compagnie Francaise v. State Board of Health, 186 U. S. 380 (1902). 91 Chirac v. Chirac, 2 Wheat. 259 (1817); Elkinson v. Deliesseline, supra, note 42; in re Tiburcio Parrott, 6 Sawyer 349 (1884); Truax v. Raich, 239 U. S. 33, 43 (1915), Am. Jl. Int. Law, 10: 158.

92 Patsone v. Pa., 232 U. S. 138, 145; Heim v. McCall, 239 U. S. 175, 193 (1915). Am. J. Int. Law, 10: 162. But see Mo. v. Holland, supra, sec. 49.

93 Ware v. Hylton, 3 Dall. 199 (1796); Hopkirk v. Bell, 3 Cranch 454; Prevost v. Greenaux, 10 How. I (1856); Fredricksen v. La., 23 How. 443 (1860); Hauenstein v. Lynham, 100 U. S. 483 (1879); Wynans Petitioner, 191 Mass. 276; People v. Gerke, 5 Cal. 381 (1855).

94 Fairfax v. Hunter, 7 Cr. 603 (1813); Chirac v. Chirac, 3 Wheat. 259 (1817).

95 Hauenstein v. Lynham, 100 U. S. 483 (1879); Geofroy v. Riggs, 133 U. S. 258 (1890).

96 Supra, note 89.