volved, unless it was the question settled by the adoption of the Constitution. To use his own language: "Legislative power is distributed; upon some subjects the National Legislature has authority; upon other subjects the State the internal affairs of the States, are objects of the union. General legislative power in the Federal Government was unnecessary to accomplish the ends in view. But the power to deal with foreign nations as a unit; to secure as a unit in time of peace the best commercial treaties possible; as a unit to make war, if war was necessary; and as a unit to make the best peace possible, if peace was necessary; all these were prime objects of the Union, and they are objects which cannot be obtained by conferring a treaty-making power limited and fettered in the way it was both wise and feasible that the Federal legislative power should be fettered. Take even the power to part by treaty with the territory of a State. The probability that the new nation would sooner or later be engaged in war was present to the minds of those who adopted our Constitution. Wars are ended by treaties of peace. The spectacle of a nation being obliged to purchase peace by the cession of territory is not rare. Before, as well as since, the adoption of our Constitution, other nations have often had to purchase peace by the cession of territory. Germany demanded Alsace and Lorraine as the price of withdrawing their troops from Paris. The experience of France is not unique. Though we are now a powerful nation removed probably for many decades to come from the fear of foreign invasion, we have in the course of our short history seen a foreign power in possession of our national capital. If by entering a union with other States, a State renders it legally possible for the Central Government to sacrifice her territory or her complete control over her police arrangements to protect the territory of other States, she also gains the reciprocal advantage of being able to save herself and the great majority of the other States by sacrificing the territory of a sister State. Such an arrangement is not one-sided. "Take the specific case under consideration. The power, to admit or exclude aliens from the territory of a State unquestionably resides in our Federal Government. The Federal Government has the exclusive power of naturalization. When the States have already given to the Central Government the power to admit aliens and make them citizens, entitled to all the rights and privileges of citizenship, there is nothing unreasonable in their also conferring on that government the power to give aliens, after admission to a State and before naturalization, the right to be admitted to her public schools. . . .... "If these conclusions are correct, our Federal Government has under the Constitution power to make a treaty with Japan or any other foreign nation, giving to the subjects or citizens of the foreign nation residing in one of the States the right to attend the public schools of the State on the same terms as native or naturalized citizens. In the Constitution itself we find nothing to restrain the President from negotiating, with two-thirds of the Senate 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."' 90 from ratifying such a treaty. It is not opposed to the fundamental characteristics of free republican government; it does not interfere with the liberty of the citizens of the United States; and finally, there is nothing in the nature of our Federal State from which we may imply any limitation on the treaty-making power not found in the words of the Constitution." *Address before the American Society of International Law at Washington, April 19, 1907. In the Columbia Law Review of March, 1907, Vol. VII, No. 3, appeared an article written by Arthur K. Kuhn, entitled "The Treaty-making Power and the Reserved Sovereignty of the States.'' Among other things he said: "It is not the purpose of this paper to discuss the merits of this controversy. In its present stages it is important only because it points out that the limitations upon the treaty-making power have never been authoritatively defined and that the precedents are so few as to leave the question an open one as to whether there are any limitations at all, other than those imposed upon the treaty-making power of most other countries. If, however, owing to the peculiar structure of our political system, such limitations do exist, it is plain that the consequences may be serious; for the Federal Government may either find itself incapable of maintaining the integrity of a compact regularly entered into with § 156. Implied limitations upon treaty-making power.-While Mr. Root claimed that there were no express limitations upon the treaty-making power granted to the national government, he ad some foreign power for the benefit of citizens or subjects of that power residing or sojourning in the United States, or as a corollary, it may find that it is powerless to enforce reciprocal provisions protective of or beneficial to our own citizens residing or sojourning within the territory of that power. "An example of the first case was presented by the incident known as that of the Mafia Riots, which occurred in 1891, and which resulted in a withdrawal from Washington of the Italian Minister accredited to the United States. In that year, a number of Italians then confined in New Orleans were forcibly taken from jail and hanged by a large number of citizens. None of the participants was tried, though the then existing treaty (November 23d, 1871) guaranteed to the citizens of either nation in the territory of the other 'the most constant protection and security for their persons and property.' Neither was any compensation possible under the laws of the State of Louisiana owing to the fact that the common civil law prevailed in that State pursuant to which no action lay for injury to a person, resulting in his death. Under the position taken by Mr. Blaine, then Secretary of State, the Federal Government was powerless to do more than urge upon the State officers, the duty of promptly bringing the offenders to trial.' "We think that the issue was thus very clearly brought out, but it was not settled at the time because, following the usual practice, the Federal courts evaded the question of the ca pacity of the treaty-making power to impress upon the laws of a State a provision within its police powers, and therefore otherwise reserved, in favor of aliens, in exchange for reciprocal benefits to our own citizens within the territory of the foreign state. Instead, the decision went off on a point of the interpretation of the treaty. Furthermore, the Federal Government finally avoided further conflict with Italy by offering to her a sum of money to be distributed among the families of the victims, though the letter offering this indemnity disclaimed any liability on the part of the United States Government. . . .... "These examples from the diplomatic relations of the United States with other powers are cited to show the situation presented by the peculiarity of our organic law. The war spirit which pervaded both countries at the time of the incident with Italy and the energetic measures employed in the President's recent message to Congress to quell a recurrence of it on either side of the Pacific because of the incident with Japan, indicate the importance of having a clear definition of the treaty-making power under our Constitution. A strongly centralized nation such as Italy or France, or as we have seen even our own government when in the position of the complainant, will never submit without a struggle to the avoidance of treaty obligations on the plea of ultra vires. Neither will the opportunist methods of diplomacy forever prove adequate. Mr. Blaine adopted the attitude of the overzealous attorney mitted that there were certain implied limitations arising from the nature of the federal government and from other provisions of the Constitution, but he asserted that these limitations did not defending his client from a money claim for injuries and finally compromised on the best basis possible. This will not do, for, as the case of the Montijo proves, the shoe has been, and again may be on the other foot. "In respect of categories of legislation enumerated in the Constitution, there can be no dispute as between the authority of the treaty-making organs and the States. Here at most there may arise the question whether there has been a usurpation of the legislative powers of Congress. Though not within the limitations of the present paper, we may say that even as far back as 1840 Mr. Calhoun recognized that even the exclusive delegation of a power to Congress does not exclude it from being the subject of treaty stipulations. Of this the power of appropriating money furnishes a striking example. If the contrary should be maintained, it might truly be said that the exereise of the treaty-making powers has been one continual series of habitual and uninterrupted infringements of the Constitution.' "Of all the movements toward centralization by construction and interpretation, which have been progressing since the formation of the Federal Union, none would seem more necessary for the preservation of the whole than the tendence toward a liberal construction of Article VI of the Constitution. Even in the Convention, the necessity for the widest delegation of these powers was recognized. Madison pointed out that the violation by the States, as separate entities, of treaties passed under the old Articles of Confederation had already resulted in complaints from almost every nation with which treaties had been formed. It is plain from the discussion which ensues that the provision was adopted in its present form in order to prevent any part of the nation from causing a rupture between a foreign nation and the whole. It is significant that after a full discussion in the Convention, the only restraints placed upon a treaty-making power were as to the method in which treaties must be made and ratified, and that those restrictions related only to the method of exercising the power and not to its scope or supremacy. "From the very nature of our government, the treaty-making power must reside centrally or nowhere. If there be a limitation upon the power of the President and Senate to enter into a particular treaty, the power of the entire nation has been by so much cut down. "For all practical purposes of negotiation with a foreign nation, there is no residue of such power left anywhere. Adopting the reasoning of Mr. Butler, now Reporter of the Supreme Court of the United States, we may say that as to those subjects over which it was neither proper nor practical, for a State to exercise sovereignty, but which required national action for the joint or equal benefit of every State, it was impossible for any State separately, or all the States collectively, either to delegate or reserve elements of sovereignty which none of them possessed. to the slightest extent affect the execution of treaty stipulations relating to the treatment of aliens within the United States. He referred to the declaration of the supreme court of the United States that the treaty-making power extends to all proper subjects of negotiation between our government and the governments of other nations, and that, as expressed in the Constitution, it 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, and that with the exception of not authorizing what the Constitution forbids, nor authorizing 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 a state without its consent, "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." "Whatever may have been the intention of the framers of the Constitution in respect of the reserved powers of the States within the category of national or State law, it could never have been (and the debates in the Convention so prove) to limit the central government in the exercise of its international power as a sovereign to protect and benefit the citizens of all of the States in foreign countries, and for that purpose, to assure reciprocal rights to aliens in all of the States. It is clear that as a practical matter the one power follows as a corollary of the other. If it has the power to obtain the right in behalf of our own citizens, it has the power to pledge the faith and honor of the nation for the performance of the quid pro quo as an obligation upon all of the States. If it be said that thus a treaty may be made the subterfuge for imposing undesired legislation upon the States, it may be answered that besides the numerous political checks provided for in our system, the Supreme Court has ample authority to review the exercise of the constitutional prerogative just as it does in respect to an excess by Congress and the President, in the exercise of one of the expressly delegated powers. "But with these exceptions, the unrestricted exercise of the treaty power is essential to the Central Government as representing the nation and its sovereignty over and against foreign nations. It is wholesome because it tends to prevent war. It is consistent because Article I, Section 10, expressly denies all treaty power to the States without the consent of Congress and further because all of the States are equally represented in the ratifying body, wherein two-thirds must concur. International, not municipal, standards of law should determine its scope and the limitations of its use." 91 In De Geofroy v. Riggs, 133 U. S. 258, 10 Sup. Ct. Rep. 295, 33 L. ed. 642, Mr. Root's Address before |