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APPENDIX

ADDRESS OF THE PRESIDENT

FRANK B. KELLOGG

OF MINNESOTA

TREATY MAKING POWER.

Gentlemen of the American Bar Association:

This is the first meeting of the American Bar Association outside of the United States. Though we meet in a foreign country, we do so among a people allied to us by every tie that binds nations in a common brotherhood. We are of the same race, speaking the same language, governed by the same general principles of law, inspired by the same traditions, working out as separate nations the same great destiny. I hope that the peace which has so long existed between these peoples may be further cemented, and mutual and friendly intercourse continue to increase. On behalf of the American Bar Association, I welcome this opportunity to extend to the officials and lawyers of the Dominion of Canada our sincere thanks for the great assistance they have rendered towards making this a memorable meeting of our Association.

The constitution of the American Bar Association requires the President in his annual address to review notable changes in statute law. Ordinarily this subject is rather dry and of little interest to the lawyers of other countries; yet at times these enactments of Congress or of the legislatures of the states touch upon subjects of absorbing general interest. The statute which has attracted the most attention, stimulated the widest discussion and raised questions of the most far-reaching and momentous consequences to the nation and its relations with foreign powers is the Alien Land Law of California. This statute, which became a law on May 19, 1913, permits aliens eligible to

citizenship to possess, enjoy, transmit, and inherit real property in the same manner as citizens. Aliens not eligible to citizenship may acquire, possess, enjoy, and transfer real property, or any interest therein, in the manner and to the extent permitted by any treaty existing between the Government of the United States and the nation of which such alien is a citizen, and not otherwise. In other words, such an alien, if not permitted by treaty, may not own, transmit or inherit real property in the state of California, and such property if held in violation of the act is subject to confiscation to the state. Section 7 of the act provides: "Nothing in this act shall be construed as a limitation upon the power of the state to enact laws with respect to the acquisition, holding, or disposal by aliens of real property in this state."

The treaty with Japan of 1911 provided that: "The citizens or subjects of each of the high contracting parties shall have liberty to enter, travel and reside in the territories of the other, to carry on trade, wholesale and retail, to own or lease and occupy houses, manufactories, warehouses, and shops, to employ agents of their choice, to lease land for residential and commercial purposes, and generally to do anything incident to or necessary for trade upon the same terms as native citizens or subjects submitting themselves to the laws and regulations there established."

The question raised, which has received such wide discussion by publicists and journalists, is whether a state may, in violation of a treaty between the United States and a foreign power, regulate the ownership of real estate within its borders by citizens of such foreign country.

I shall not stop to discuss the question of whether the treaty with Japan does give to her citizens within the United States the right to own real estate. It gives them the right to carry on trade, to own houses, manufactories, warehouses, and shops, and to lease land for residential and commercial purposes. If citizens of Japan have any right to own real estate in California, it is difficult to see how this law takes away such right, because it provides in substance that such aliens may acquire, possess, enjoy,

and transfer real estate in the manner and to the extent and for the purposes prescribed by any treaty.

But the question has been squarely raised by the declaration of the legislature of California which was intended and understood by the public generally to mean that California claimed such right notwithstanding any treaty provisions with the federal government.

Arizona has adopted an alien land law more drastic than that of California; but this likewise provides that it shall not be so construed as to conflict in any manner with any treaty of the United States.

In Washington a constitutional amendment has been submitted to the people providing in substance that if a resident alien becomes a non-resident for nine years his real property shall be vested in the common school fund.

The laws of these latter states have not attracted attention, but the passage of this law by the legislature of California and the public discussion which followed have raised a question which may disturb the amicable relations heretofore existing between the United States and Japan-a question of vital importance to our nation in its relation with foreign governments.

I am convinced that there can be no serious doubt that the federal government may, by treaty, define the status of a foreign citizen within the states, the places where he may travel, the business in which he may engage, the property he may own, both real and personal, and the devolution of such property upon his death; that such a treaty constitutes the supreme law of the land; and that a state law contravening such a treaty is void and will be so declared by the courts in a suitable action.

These propositions have been established by the laws and usages of all civilized nations, by the history of the times, by the opinions of the statesmen who framed our Constitution, by the provisions of the Constitution, by the universal practice of making such treaties from the days of the Confederation, and, lastly, by the repeated decisions of the Supreme Court of the United States and of many other courts during a period of more than one hundred years. And yet, notwithstanding this array of

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