The sun. [volume] (New York [N.Y.]) 1833-1916, 1906-12-06
TREATIES NOT SUPREME LAW.
THE HON. JOHN W. FOSTER ON
THEIR INTERPRETATION.

He shows From Precedents That the Con-
stItutIOn Prevails over n Treaty When
They Come In COnnict and the Treaty
cannot he Enforced I'm the Courts.
WASHINGTON, Dec. Sin his latest work
THE Practice OF Diplomacy just issued
the Hon. John W. Foster, former Secretary
OF State and leading authority on inter-
national law, has a chapter on the inter-
probation of treaties which presents an
interesting case bearing upon the present
agitation over the right Of Japanese chill
dred to enter the public schools OF San
Francisco. He says:
"A treaty has the legal effect Of repeal
ing all Federal avs in conflict with It,
and it likewise overrides all State con-
stitutions and laws. The term supreme
law in the Constitution. applied to treaties,
gives them no higher standing or greater
force, however, than an act Of Congress.
Both are upon the same footing and the
latest enactment prevails. In case
the provisions of a treaty are in conflict
with the Constitution the latter prevails,
and the treaty cannot be enforced in the
courts"
An incident is given, singularly enough
arising in San Francisco, to illustrates:
THE treaty OF 1885," the author says,
between the United States and France
contained a provision that Consuls shall
never be- compelled to appear as witnesses
before the courts NJ. Dillon, the French
Consul at San Francisco, was summoned
as a witness in a criminal case pending In
the United States District Court, and he
pleaded this stipulation Of the treaty, but
the court held hat it could have no force or
effect because it was in conflict with Amend
ment Q of the Constitution OF the United
States, that in all criminal prosecutions the
accused shall enjoy the right to be con-
fronted with the witnesses against him, to
have compulsory process FOR obtaining
witnesses in his favor DC.
The French Government complained
that the action Of the court was a violation
of the treaty. The Secretary OF State
successfully maintained that the stipulation
cited was of no force 'becaus e the Consti-
tuition is to prevail over a treaty where the
provisions of the one came in conflict with
the other. II is not within Incompetence
Of either Congress or the treaty making
power to modify or restrict the operation
of any provision of the Constitution OF the
United States The treaty OF 1858 ia still
in operation, but the clause cited is not OBJ
served in the United States"
Applying ltlc DIllClplOS bluH CeNdbAloACA
in the Dillon case to the proceedings to be
instituted in the Federal courts of California
by direction of the President TO compel the
school authorities Of San Francisco to admit
japanese children to the public schools Of
tina city a man fully competent TO express
an opinion said that the courts would I'M
doubleday dismiss the proceedings.
Amendment 10 Of the Constitution,
he said, declares that the powers not
delegated to the United States by the o
stitution nor prohibited by it to the States
are reserved to the States, respectively,
or to the people That the power to estab-
lish, control and regulate their own public
school systems is reserved to the States
seems 10 me to be too clear for argument.
Invoking the most favored nation clause
in the treaty with Japan will not avail, for.
as was said by the Secretary Of State in the
Dillon case, ii is not within the competence
of either Congress or the treaty making
power to modify or restrict the operation
of any provision Of the Constit ution.' Unless
the courts hal assume a power denied
10 the legislative and executive branches
of the Government the effort TO bring the
management Of the school system Of a State
under Federal control must necessarily
fail, being a decided modification Of
Article X"