New-York tribune., 1906-10-28
THE ENFORCEMENT OF TREATIES.

The legal question involved in the exclusion or
q japanese child from the public schools OF san
Francisco in possible violation OF our treaues
with JAPAN Is one which has long troubled the
State Department. and Secretary Root is 10 De
commended for his courageous and straight
forward efforts TO establish the governments 8
power to keep faith with foreign nations. For
years every time foreigner has been the victim
of mob law In this country our government has
been placed in an embarrassing position Sew
eral Presidents, including Mckinley, Harrison
and Cleveland, have urged Congress TO give to
the federal courts jurisdiction of offences vioat-
ing the treaty rights of foreigners, and many
bills 10 that end have been introduced. But the
trial of such cases still rests with the state
courts, and the United States is practically un-
able TO give to foreign nations that assurance
that it Will punish wrongs inflicted upon their
citizens which it, in turn, demands when Its
citizens are wronged abroad.
Secretary Roots Interpretation Of the Constitu-
ton, if correct, will IN some measure take the
place of the proposed legislation. We imagine
some Of his critics will be quick to denounce his
doctrine another "usurpation" and an at
tempt 10 do by executive order what Congress
has failed to do. But they would quite misinter
pref the bearing of his theory. By Article VI of
the Constitution treaties are made the supreme
law Of the land, and 'the judges in every state
shall be bound thereby, anything in the con-
''stitution or laws of any state to the contrary
Notwithstanding" Article III of the Constitu-
ton likewise provides that "the judicial power
shall extend to all cases in law and equity aris
"ing under this Constitution, the laws Of the
United States and the treaties made or which
shall be made, under their authority There
never has been the slightest doubt that Congress
could by law take from the state courts cogniz-
ance of the murder OF q foreigner under treaty
protection. 1t has not hitherto been thought pos
sible for the United States courts to take juriS
diction of such cases, however, without statutory
authority, as the constitutional provision respect
ing the exercise Of judicial power has been held
not TO be self-eXecuting.
We do not understand that Mr. Root proposes
that the United States courts shall now assume
such criminal jurisdiction. His point appears to
be rather that the equity powers of the federal
courts fairly permit them TO enjoin persons from
violating treaty rights and to enforce respect for
those rights by mandamus. As those same
equity powers are widely employed TO enforce
other constitutional provisions with or with
out special statutory authority, there is moth
ing revolutionary in this doctrine, though its
application may be novel 1t is q doctrine which
will not be enforced irregulary or by "usurpa-
tion," but will be submitted TO the courts just
as any other point of law raised in behalf of the
government in litigation would be. If the courts
find that the point is we'll taken and that the
equity Jurisdiction of the United States can
under existing law be invoked for the protection
of the treaty rights of foreigners, a great gain
will be accomplished for good order and national
honor, but no federal power will be exercised
which the United States government has not
long possessed by express warrant of the Con-
stitution.