The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1885-1921, 1906-12-09
THE STATES
AND TREATIES
Mcleod Case Led to
Very important
Changes.

Editor Advertiser: In your issue OF
Dec. ). 1906. you quote an article from
Harpers Weekly on The Japanese
Question and the Law
| The article asks questions about the
! authority of the Federal government to
treat as invalid the statutes of States
| that contravene il, and to bind the
State governments by their treaty OBJ
| legations.
These questions are asked as if they
were not settled law now. and quotes
the Mcleod case of 1910 as precedent
TO show the doubt of Secretary For
sythe at that time as to his power
to enforce international law in the
State of New York.
1t seems to me that the article gives
a wrong Impression to the reader not
| versed in the law. 1t leaves the
questions unanswered except by an in
cident which is indecisive. 1t leaves
the question with quotations from
James Madison who foresaw the diff
! Guilty, as if that We're the final word.
| Congress has made laws and the
| courts have enforced writs since that
day which show that there is full power
in the Federal government to enforce
| the law as interpreted by its courts.
| AS a result of the experience in the
| Mcleod case Congress passed laws in
| 1912 which prevent such a conflict of
authority between the State and Fed
| eraI authority. CO. S. Rev. Stat. sec.
| 1922
That statute gives to the Circuit and
District Courts of the United States
i Jurisdiction on habeas corpus proceed
| ings in all cases in which q foreigner
who is held by State authority claims
to ha he
principles of international law.
| In 1875 Circuit Courts were given orig
inal Jurisdiction in any causes arising
under the constitution. laws or treaties
of the United States where over $4,000
was involved, regardless of the citizen
ship of the parties, and also greater
power to issue writs of habeas corpus, |
in favor of foreigners.
Since the Civil War established the |
supreme authority of the United States |
over the States in all Federal ques- |
tionS, the resistance of State authori- |
ties to the judgments of the Federal |
courts has been unknown. The author |
ity of the Supreme Court in all matters |
affecting Federal questions has become |
universally acknowledged. Baldwin on I
The American judiciary"
The Revised Statutes of the United |
States sec 5299, provide that if the
courts meet with opposition of a Sc
rious nature, the President may call out
the militia of the states or use the Fed
eral army to enforce the decree.
An example of force SO used occurred |
in 1894, when Washington sent army |
into Pennsylvania to suppress the riot
ers there who INSTRUCTED legal pro-
ceeding in collecting the Whiskey rev
enue tax, the so-called Whiskey Rebel
lion. In 1899, Pres. Adams sent militia
into Pennsylvania to enforce the pay
ment of the house tax imposed by Con-
gress.
OF late years, the power of the Unit
ed States TO enforce order has been
shown through the use of the injurc-i
ton process.
In 1894, the great Chicago railroad
strike was initiated by the American
Railway Union. Riots followed The
United States mails were INSTRUCTED.
a temporary injunction was issued
against the officers of the Union in an
equitable action brought by the Unit
ed States under direction of the Attor-
ney General.
The officers of the Union disobeyed
the writ of injunction. Their arrest
and Imprisonment for contempt of
court followed which broke up the
strike GU. S. VS.. Debs "a Fed. Repor-
ter 72D and the mails We're no longer
interfered with. The use of the power
of a Federal court to imprison for con-
t. mpt of its authority broke down the
opposition to the Federal authority
without the necessity of using the
army. SO in the matter of treaties
which like the Constitution are the
supreme law of the land the Federal
courts may be used to enforce the law.
The statutes of 1912 and 1875 and the
general equity power enforced by in
junction furnish means to the Federal
authorities and to the foreigners un-
lawfully imprisoned to compel obed
fence to the supreme law of the land.
There being power to bind the State =,
by the enforcement of the
DEGREES of Federal courts. the only
question would be the authority of the
Federal courts TO declare a State stat-1
ute which has the form of law not to
be law, because contrary to the sup
RENE law of the land, the Constitution
and treaty rights
AS to the latter power there can be
no question for UP to 1905 the Supreme
Court of the United States has set aside
as Inconsistent with the Constitution
of the United States over two hundred
statutes passed by the States. 131 [.
:. Reports CCXXXV.
If the supreme law of the land is
violated the Federal courts have been
ready to redress the grievance even
to the extent of setting aside the
statutes of State, and under the laws
of 1875 a foreigner who became impri-
sOned for refusal TO obey a state statute
in contravention of a treaty would be
allowed to seek relief at once from the
Federal courts and have the question
by them. History has
shown that their DEGREES are enforce
able also. except in a few cases of
money judgments against a State,
which. are rare.
There seems to be inadequate reason
for such journals as the "Harpers'
Weekly" to speak as if the machinery
Of the Federal government had fatal
flaw in its gearing. which might be
cause of war.
The Old Mcleod incident is no longer
If any value as showing the present
of the statutes and the power -
II the Federal courts in their prac- c