The Birmingham age-herald., 1907-04-20

right, liberty, or privilege? These ques- tions of construction, and especially the second, are by no means free from doubt;
 but as they concern only the meaning
 of particular. clsuse In a particular
 treaty they are not of permanent impor-
 tance, and, thu particular occasion for
 their consideration having passed, they
 need not now be discussed.
 The Other Questions.
 "The other question was whether, if
 the treaty had the meaning which the
 government of Japan ascribed to it, the government of the United States had the constitutional power to make such treaty
 agreement with a foreign nation which
 should be superior to and controlling
 upon the laws of the state of Califor-
 nia A correct understanding of that ques- tion is of the utmost importance not
 merely as regards the state of Califor-
 nla but as regards all states and all citi-
 zens of the union.
 There was a very general misappre-
 hension of what this treaty really under
 took to do. It was assumed that in mak- ing and asserting the validity of the treaty
 of 1894 the United States was asserting
 the right to compel the state of Califor-
 mia to admit Japanese children to its
 schools. No such question was involved. That treaty did not, by any possible construction, assert the authority of the United States to compel any state to
 maintain public schools, or to extend the privileges of its public schools to Japa- nese children or to the children of any
 alien residents. The treaty did assert | the right of the United States, by treaty, to assure to the citizens of foreign na-
 tion residing in American territory equal ity of treatment with the citizens of other foreign nations, so that If any state chooses to extend privileges to alien res idents as well as to citizen residents, the state will be forbidden by the obligation of the treaty to discriminate against the resident citizens of the particular coun- try with which the treaty Is made, and
 will be forbidden to deny to them the privileges which 1t grants to the citizens of other foreign countries. The effect of such a treaty, in respect of education, is
 not positive and compulsory; 1t is neg ative and prohibitory. It is not re- quirement that the state shall furnish education: it is prohibition against dis crimination when the states does choose | to furnish education. It leaves every | state free to have public schools or not, | as 1t chooses but it says to every state: | ''If you provide a system of education which includes alien children you must | not exclude these particular allen chill dren."
 States Rights.
 "It has been widely asserted or assumed that this treaty provision and it's enforce | ment involved some question of states rights. There was and is no question
 of states rights involved, unless it be the
 question which was settled by the adop- | ton of the constitution.
 This will be apparent upon considering | the propositions which l will now state q. The people of the United States, by the constitution of 17S7, vested the whole | reaty-makng power in the national gov ernment. They provided:
 "The President shall have power, by and | with the advice and consent of the Sen- ate, to make treaties, provided two- thirds of the senators present concur. (Art. II, sec. 2.)
 No state shall enter into any treaty alliance or confederation; No state shall, without the consent of Com gress, enter into any agree
 ment or compact with another state, or with foreign power. (Art. l, sec. 10,) 5 This constitution, and the laws of the | United States which shall be made in pursuance thereof, and all treaties made, 1 or which shall be made, under the au- | thority of the United States, shall be the l supreme law of the land; and the judges | in every state shall be bound thereby any thing in the constitution or laws of any state to the contrary notwithstanding. | (Art. VI) y Legislative Powers. Legislative power is distributed; upon some subjects the national legislature has authority; upon other subjects the state legislature has authority. Judicial power | is distributed; in some cases the federal
 courts have jurisdictions in other cases the state courts have jurisdiction Execu- | tive power is distributed; in some fields | the national executive is to act; in other fields the state executive is to act. The treat-making power is not distributed; it | is all vested in the national government; no part of 1t is vested in or reserved to