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President and Senate can not do by treaty what the whole Government is interdicted from doing in any way.

That is a concise but a stately statement of the proposition upon which I have planted myself today.

The last case I shall cite is the case known as the "Dispensary case," decided by Judge Simonton in the South Carolina circuit (54 Fed. Rep., 969). It is so pertinent to the subjectmatter of this discussion that I shall quote an extract from the opinion of Judge Simonton thereon:

It is urged on behalf of these complainants that they are Italian subjects, and are protected by the treaty stipulations between Italy and the United States. The language of the treaty on this point is as follows:

"ART. 2. The citizens of each of the high contracting parties shall have liberty to travel in the States and Territories of the other; to carry on trade, wholesale and retail; to hire and occupy houses and warehouses; to employ agents of their choice, and generally to do anything incident to or necessary for trade upon the same terms as the natives of the country, submitting themselves to the laws there established.

"ART. 3. The citizens of each of the high contracting parties shall receive in the States and Territories of the other the most constant protection and security for their persons and property, and shall enjoy in this respect the same rights and privileges as are or shall be granted to the natives, on their submitting themselves to the conditions imposed upon the natives."

Under these articles the complainants have the same rights as citizens of the United States. It would be absurd to say that they had greater rights. We have seen that the right to sell intoxicating liquors is not a right inherent in a citizen, and is not one of the privileges of American citizenship; that it is not within the protection of the Fourteenth Amendment; that it is within the police power. The police power is a right reserved by the States, and has not been delegated to the General Government. In its lawful exercise the States are absolutely sovereign. Such exercise can not be affected by any treaty stipulations.

In addition to the cases that I have cited, and in closing the entire reference, I desire to now advert to several diplomatic precedents of great value upon this subject. The first incident

took place during the administration of Mr. Marcy over the Department of State, and I quote his opinion in the matter:

[Mr. Marcy, Secretary of State, to Mr. Mason, Minister to France, September 11, 1854.]

It is not, as you will perceive by examining Mr. Drouyn de L'Huys's dispatch to the Count de Sartiges, the application of the "principle" to the particular case of M. Dillon which is to be disavowed, but the broad and general proposition that the Constitution is paramount in authority to any treaty or convention made by this Government. This principle, the President directs me to say, he can not disavow, nor would it be candid in him to withhold an expression of his belief that if a case should arise presenting a direct conflict between the Constitution of the United States and a treaty made by authority thereof, and be brought before our highest tribunal for adjudication, the court would act upon the principle that the Constitution was the paramount law.

The second incident also took place during the administration of Mr. Marcy:

[Mr. Marcy, Secretary of State, to Mr. de Figaniere, Portuguese Chargé d'Affaires, March 27, 1855.]

Although the language of Article II of the Consular Convention between the United States and France of February 23, 1853, exempting consuls from compulsory processes, is general and unrestricted in terms. "yet it is here held that it does not take away the right which the defendant in a criminal prosecution has to resort to such process to procure the witnesses in his favor, for this right is secured to him by the express language of the United States Constitution." That instrument is paramount in authority to the laws of Congress or of any of the States, and to all treaty stipulations.

At a very late date the question arose with the Department of State, presided over by Secretary Hay, and I read the conclusion that the Secretary reached upon this subject, quoting from Mr. Moore's valuable treatise upon international law:

July 19, 1899, the Department of State declined a proposal of the British Government to negotiate a treaty to prevent discriminatory legislation by the several States of the United States, subjecting foreign fire insurance companies to higher taxes than domestic companies. The reason given for the declination was that the negotiation of such a treaty would probably be futile on account of the indisposition of the people to permit any encroachment upon the exercise of powers of the local legislation.

Is it necessary for me to say anything further? Are the public schools of California the property of California, or the property of the United States? Does the public school system of California or of any other State belong to the State that creates and supports it, or to the Government that has neither created nor sustained it? Does this subject come within the treaty-making power? Does it come within the delegated powers of the Constitution? Have the United States the right to incorporate into a treaty a provision that the States shall, out of their own treasury, educate the citizens of foreign governments? Is there any power in any treaty to deprive any of the States of their reserved right to regulate and manage their local affairs according to their own usages and statutes?

Are not foreign governments that deal with us presumed to know the nature and the character of our institutions,and is not this principle fully established by an unbroken line of precedents passed upon by the State Department from time immemorial? There can be but one response to all these inquiries, in my opinion, and as the result of the investigation that I have given to this subject I now assert, in the language of the resolutions, that the public school systems of the States belong to the States along with all their reserved rights; that the Government has no power whatever to meddle with them or control them, and it was the duty of the President to have informed the Government of Japan as soon as the question arose, no matter what his feelings or sentiments may have been, that the subject was entirely without the domain of his jurisdiction.

I shall now, in conclusion, summarize the results that I have reached. I am not here for the purpose of denying to the Government the power to cover by treaty every right, privilege and concession that comes within the treaty-making power in order to carry out the objects and purposes of this Government as defined in the Constitution. I do not for a moment set up the reserved rights of the States against the exercise of any con

stitutional power that may be incorporated in a treaty. I admit that the United States can enter into any treaty with any foreign power in reference to any subject embraced in the Constitution. I deny, however, that it possesses any inherent right to make a treaty, and I claim that the treaty-making power lies in grant and not in sovereignty, and must be construed in pari materia with all the other clauses of the instrument that creates it, and that in interpreting the treaty-making power we must be governed by the principles of international law, its usages and its practices, as those principles, usages and practices appertain to our form of constitutional government. I utterly deny that we have any right to make a treaty that violates the Constitution, or deprives the States of their reserved rights to conduct their local affairs over which the Federal Government has no jurisdiction, and which they alone have the right to administer according to their own constitution and statutes.

As I said at the commencement, this is a grave and profound question that we have encountered. The local problem sinks into insignificance beside the great principle that is here involved. It affords a timely warning and admonition that at any time, through the treaty-making power, a deadly blow may be aimed at the entire fabric of our institutions, and they can be leveled to the ground. If the President can practically make a treaty, and that is what he is doing in other directions, and dispose of the reserved rights of the States, then the treatymaking power is above and beyond the Constitution, and the supremacy of the States within their own borders departs and vanishes forever. If the Democratic party accepts such a doctrine as this, then it has also parted with its birthright and abandoned the historic ground upon which it has stood for over a century. I believe in the complete exercise by the Federal Government of every Federal power contained in the Constitution, but beyond the delegated powers and the right to pass all

laws necessary to execute the delegated powers, I would never justify the slightest encroachment upon the reserved rights of sovereign States within their own borders. In the night of our despair, this reserved right of the States is the only constellation that for our party has no "fellow in the firmament." We were born under its horoscope, and if there is any life left in us we must forsake the worship of grotesque and meaningless idols and follow it like a pillar of fire to the land of our nativity.

EXECUTIVE FUNCTIONS AND STATES' RIGHTS.

This speech, delivered on January 31, 1907, supported Senator Rayner's resolution holding that the prerogatives of the Executive should be limited to the performance of duties assigned him by the Constitution and the laws of Congress.

Some weeks ago, a member of the Cabinet, a lawyer of great attainments and profound learning, in an address delivered by him, and given wide circulation in the public press, gave utterance to the following sentiment:

It is useless for the advocates of States' rights to inveigh against the supremacy of the constitutional laws of the United States or against the extension of national authority in the fields of necessary control where the States themselves fail in the performance of their duty. The instinct for self-government among the people of the United States is too strong to permit them long to respect anyone's right to exercise a power which he fails to exercise. The governmental control which they deem just and necessary they will have. It may be that such control would better be exercised in particular instances by the governments of the States, but the people will have the control they need, either from the States or from the National Government, and if the States fail to furnish it in due measure, sooner or later constructions of the Constitution will be found to vest the power where it will be exercised in the National Government.

About a week after this address had been delivered and sufficient time for further reflection had elapsed, the distinguished Secretary of State, in answer to comments and criticisms that

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