SEGREGATION OF JAPANESE STUDENTS national Constitution and laws to the judges of the state tribunals, their supremacy in all the judicatures of the country was secured. M1 Judge Story says of the same Article : "It is notorious that treaty stipulations (especially those of the treaty of peace of 1783) were grossly disregarded by the States under the confederation. They were deemed by the States not as laws, but like requisitions of mere moral obligation, and dependent upon the good-will of the States for their execution. Congress, indeed, re monstrated against this construction, as un founded in principle and justice. But their voice was not heard. Power and right were separated; the argument was all on one side, but the power was on the other. It was probably to obviate this very difficulty that this clause was inserted in the Con stitution.2 The propriety of this clause would seem to result from the very nature of the Constitution. If it was to establish a national government, that government ought, to the extent of its powers and rights, to be supreme. . . . It is to be con sidered that treaties constitute solemn com pacts of binding obligation among nations; and unless they are scrupulously obeyed and enforced, no foreign nation would con sent to negotiate with us; or if it did, any want of strict fidelity on our part in the discharge of the treaty stipulations would be visited by reprisals or war. It is, there fore, indispensable that they should have the obligation and force of a law, that they may be executed by the judicial power, and be obeyed like other laws." 3
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an inquiry may be made by a court which is independent of the political department of the government, and free to consider the question of infringement on its merits, is a means of protection to the foreigner. If his contention is sustained, the court, in pursu ance of a constitutional provision, will pro nounce null and void, and therefore inoper ative, any local ordinance or state law which it finds to be in violation of the treaty. Because this means of redress is open to the alien, the United States is justified in re quiring that an alleged violation of a treaty by the act of a state should be made the subject of judicial inquiry in an American court before being asserted as a ground for diplomatic intervention. Such has been our constant practice.1 In a note to the Chinese Minister, May 27, 1890, the Secretary of State, Mr. Blaine, in reply to a protest from the Chinese government against an ordinance of San Francisco, requiring Chinese subjects there residing to remove from their existing homes and places of business to a particular part of that city, as a violation of Article III, of the treaty of 1880 said:
It is a benefit to the alien resident in the United States that whenever he may believe that his rights under a treaty are infringed by the act of a single state he may secure a judicial interpretation of the treaty by a competent tribunal. The fact that such
Meanwhile, may I ask your attention to the sixth article of the Constitution of the United States, which places treaties on the same juridical basis as laws and makes them the supreme law of the land, anything in the constitution or laws of any State to the contrary notwithstanding. By the sec ond section of the third article the judicial power of the United States is made to extend to all cases arising under the treaties. Under these provisions, and the statutes of the United States passed to give them effect, it is believed that the Chinese who are said to have been arrested under the
1 Constitutional History of the U. S. by George Ticknor Curtis, 2nd ed., p. 554. Cited in C. H. Butler's Treaty-Making Power of the United States, § 264.
- Story's Commentaries on the Constitution,
5th ed. § 1838. •id. §§ 1837, 1838. See also C H. Butler's Treaty-Making Power of the United States, § 271
1 See the reply of Mr. Jay, when Secretary of Foreign Affairs, to the complaint of Sir John Temple, Dec. 11, 1787, that an action of trespass had been instituted against a British subject in violation of the treaty of peace of 1783. 3 MS. Am. Let. 306, Moore's Dig. of Int. Law, § 760. Mr. Bayard, Sec. of State, to Baron Fava, Italian Min, Dec. 18. 1888, MS. Notes to Italy VIII, 315 — Moore's Dig Int. Law § 760.
