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authority, when the question arose, the Legislature of California, by an almost unanimous vote of its members and with the approval of its distinguished governor, took the position that California had the exclusive right to regulate the ownership and disposition of real estate by foreign citizens-a position which was conceded without question by a large section of the public journals, and which seems to have been held by influential members of the Washington Government. Certain it is that the government did not take the stand that any law of California or any other state, made in violation of a treaty with the United States, is void, and that the government would enforce such treaty rights notwithstanding the action of the states.
From the standpoint of history and judicial authority, I shall attempt in this address to maintain the supremacy of the treatymaking power, although the subject has been so fully treated by able writers and in judicial opinions that it seems hardly to be open to discussion.
The Federal Government is a government of the people, and not of the states. Its title springs from the primary authority of all governmental power, and its treaty-making power is subject to no limitations except those provided by the constitution.
The provisions of the Constitution of the United States relative to the treaty-making power and the limitations upon the states are as follows:
"No state shall enter into any treaty, alliance, or confederation." Article I, Section 10, Clause 1.
"No state shall, without the consent of Congress enter into any agreement or compact with any state, or with a foreign power." Article I, Section 10, Clause 2.
"He (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." Article II, Section 2, Clause 2. "The judicial power shall extend to all cases, in law and equity, arising under this Constitution, the laws of the United States, and treaties made, or which shall be made, under their authority." Article III, Section 2, Clause 1.
"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, auything in the constitution or laws of any state to the contrary notwithstanding." Article VI, Clause 2.
If there were no authority to the contrary, it would hardly be presumed that the people of the United States intended to confer upon the federal government a less power than had been exercised by other nations since the dawn of civilization. It has been the practice of governments, through the treaty-making power, to fix the status of foreign citizens, their right to engage in business, and to own, transfer and inherit property. It is one of the indubitable prerogatives of sovereignty.
The exercise of the treaty-making power has rarely been left to the individual states collectively constituting a nation, nor have such states usually been permitted to pass laws violating such treaties. Few individual states in confederations have re
tained the treaty-making power. Notable examples of these were the Greek, the Swiss, the North German and the Netherlands confederations. The Greek republics perished. The other three governments, finding the loose confederations disastrous. to national unity and prosperity, changed their forms of government so that the treaty-making power is now vested in the nation.
The statesmen of the latter part of the eighteenth century who participated in framing the Articles of Confederation and the Constitution of the United States, were deep students of history, they were familiar with the examples and failures of certain of these confederacies; and the debates in the Continental Congress, in the Constitutional Convention, and in the conventions of the various states considering the adoption of the constitution, illustrate with remarkable clearness that it was the intention by the adoption of the constitution to place the treatymaking power solely in the federal government, to make that power comprehensive, including all the subjects upon which it had been the custom of nations to treat, to make the treaties the supreme law of the land, and to create a federal judiciary and an executive with powers adequate to enforce the obligations imposed upon the nation by its treaties. These men knew exactly what they were doing. They disagreed upon the wisdom of
giving such power to the federal government, but they did not disagree as to the extent of the power they were conferring. They had seen the defects of the confederation, the want of power to enforce treaties, and the evils resulting therefrom, and they undertook by the adoption of the constitution to remedy those evils.
Let me now invite your attention for a few moments to the treaty-making power conferred upon the federal government by the articles of confederation and the disastrous results flowing from the want of authority to enforce its treaties. By the articles of confederation of 1778, it was provided that "no state, without the consent of the United States in Congress assembled, shall send any embassy to or receive any embassy from, or enter into any conference, agreement, alliance or treaty with any king, prince, or state." (Article 6.)
"The United States, in Congress assembled, shall have the sole and exclusive right and power of determining on peace
and war, . . . . of sending and receiving ambassadors entering into treaties and alliances; provided that no treaty of commerce shall be made whereby the legislative power of the respective states shall be restrained from imposing such imposts or duties on foreigners as their own people are subjected to, or from prohibiting the exportation or importation of any species of goods or commodities whatsoever." (Article 9.)
Under this Article the Congress of the confederation entered into treaties with foreign governments defining the status of foreign citizens within the several states, and their right to engage in business, and to own, dispose of and inherit property, both real and personal. Such treaties were made with France, the Netherlands, Sweden, Great Britain, Morocco, and Prussia.'
1 Treaty with France, February 6, 1778, 8 U. S. Statutes at Large, 12.
Treaty of Peace with Great Britain, November 30, 1782, 8 U. S.
Treaty with Sweden, April 3, 1783, 8 U. S. Statutes at Large, 60. Treaty with Prussia, September, 1785, 8 U. S. Statutes at Large, 84. Treaty with Morocco, January 7, 1787, 8 U. S. Statutes at Large, ', 100.
The right of the confederated government to enter into these treaties was apparently never questioned until after the adoption of the Constitution of the United States, when the provisions of such treaties guaranteeing the rights of foreign citizens were sustained under Article VI, Clause 2 of the Constitution making treaties then existing, or which might thereafter be made, the supreme law of the land. These subjects were not matters over which the Congress ordinarily had jurisdiction, but were matters which came within the jurisdiction of the states both under the confederation and under the Constitution; yet they were matters clearly within the treaty-making power. Can it be possible that, at the very threshold of this fabric of federal government, the men who had established it, who were familiar with its powers and with the power of governments generally to make treaties, made these treaties with the full knowledge that the Congress had no power to make a treaty over any matter which in ordinary domestic affairs was within the regulative power of the state? If it be true that the federal government may not make a treaty upon any matter which is ordinarily reserved for the governmental control of the state, a principal part of the treaty-making power, as it has been exercised for more than one hundred and twenty-five years, is swept away, for the central government has exercised this power, and it is absolutely necessary that it should do so in order to protect foreign citizens in their rights and to demand and receive for our citizens the same rights in foreign countries. We cannot expect that American citizens will be respected and receive the protection to which they are entitled under the principles of international law and the custom of nations, if we declare that our government is so impotent that it cannot give to foreign citizens within the states the same protection.
But let us consider this subject from the position of authority. When the convention which was to frame the constitution met in 1787, it was confronted with one of the most difficult tasks which has ever fallen to the lot of a deliberative body. The confederation, like all confederations which have come and gone, was inadequate for national purposes. It could not raise money,
enforce its laws, prevent the violation of its treaties by the states, or protect interstate and foreign commerce. The history of the times and the constitutional debates show that one of the most vital defects in this confederation was the want of power to enforce treaties. No one doubted the power of the government to make them, for the only limitations upon the treaty making power in the articles of confederation were in respect to imposing duties, and restraining the Congress from prohibiting by treaty the exportation or importation of any species of goods or commodities. Even those limitations were removed under the Constitution subsequently adopted. But the trouble at that time was that the confederated government was a government of the states and not of the people. It acted upon and through the state governments, rather than directly upon the people. There were no federal courts or executive officers to enforce the treaties. Their enforcement was left to the states, which either obeyed them or not as their selfish interests seemed at the time to dictate. There was no provision in the articles of confederation making the treaties superior to the laws of the states. These very property rights which I have heretofore enumerated, guaranteed to foreign citizens by the treaties, had been violated by the states. Real and personal property and debts owing them had been confiscated, and the courts had refused to enforce the treaty obligations. Especially was this true of the treaty with Great Britain of September 3, 1783, which, among other things, provided that creditors on either side should meet with no lawful impediment to the recovery of the full value, in sterling money, of all bona fide debts theretofore contracted; that all persons who had any interest in confiscated lands, either by debts, marriage settlements, or otherwise, should meet with no lawful impediment in the prosecution of their just rights, and that there should be no further confiscations made nor any prosecutions commenced against any person by reason of the part which he may have taken in the war, nor on that account should any person suffer any loss or damage either in his person or property. The violation of these guaranties by the state and the inability of the federal government to enforce them, through want of the