The Birmingham age-herald., 1913-06-01

California has passed modified alien
land bill. No doubt the visit of Secretary
Bryan had much to do with eliminating
from the measure originally proposed the
language to which Japan objected. There
Is no disgusting the fact that there is
from Siskiyou county in the north to
San Diego in the south, virulent anti
Asiatic sentiment. The best that can be
said of the bill is that it has committed
the state to policy of opposition to the
holding Of land by aliens who are ineligi-
Bile to citizenship, and has furnished the
party of the states executive with a
political issue which it will be hard to
overcome.
The question of whether the law is valid
will now be passed on by the courts of
last resort. When that decision is an
nounced. it is not unlikely that the differ
ence between Japan and the United States
arising from this land law will be sub
mitted to The Hague for arbitration.
AS we view it. the main question to be
decided are these: Under the treaty OF
1894 have any rights granted Japanese
subjects been contracted or abridged; and,
secondly, If so. has the state of Cali
fornta constitutional right to make and
enforce such a statute? As to this last
proposition we understand Senator Leroy
Wright of San Diego, one of the ablest
lawyers in California, holds that the state
has not such right. We assume his
position is like that of the late ex-Chief
Justice John Currey. who in a magazine
artile recently held
s"Tha constitution dac1or trootio .
must have the force of laws. The treaty
of 1894 between the United States and
Japan guarantees in whatever respects
right of residence, the privileges of the
most favored nation, to Japanese subjects
in the united States. The prece-
dents unquestionably give warrant for
the belief that such provision is within
the scope of the treaty making power as
exercised by the federal government"
By the terms of his problem. Japanese
are prohibited from holding lands in Cali
fornia by state statute. Yet subjects OF
France. Germany, and Great Britain are
granted the privilege. The learned writer
therefore concludes:
"Such being the case, 1t Is evident that
the statute Of California is in conflict
with a treaty provision of the United
States, and is void"
We prefer to follow the views of Mr.
Justice Daniel and of Chief Justice Taney
We believe these judges fairly stated the
law of the land Justice Daniel in the
license cases wrote:
EVERY power delegated to the federal
government must be expounded in COIN
o;l uSrt,< t.
to all that they have not delegated. - i
Laws Of the United States. In order to be
binding. must be made within the legiti-
mate powers vested by the constitution.
Treaties, to be valid, must be made with
In the scope of the same powers; for,
there can be no authority of tine United
States save for what is derived mediately
or Immediately, regularly and legitimate
ly from the constitution. A treaty no
trarily cede away any one right of a
state or of any citizen of a state"
In the passenger cases Chief Justice
Taney said:
IF the people of the several states
of this union reserved to themselves
the power of expelling from their bor-
ders any person or class of persons
whom 1t might deem dangerous to Its
peace or likely to produce physical
or moral evil among its citizens. then
any treaty or law of Congress invad-
ing this right and authorizing the In
PRODUCTION of any person against the
consent of the state would be an usur-
patton of power which this court could
neither recognize nor enforce"
There have been many decisions
holding that tho state has right tc
pass on the terms by which an alien
may hold lands.
A treaty is no more the supreme law
of the land than an act OF Congress
The government by the constitution Il
prohibited fApm contracting so as tc
transcend the rights reserved to the
states. This being fundamental, we hold
the government cannot delegate to !
treaty-making power an authority II
does not itseat pesssss, A pginetpa