44

THE GREEN BAG

public security indicates that the negotiators of the treaty considered it vital, that not withstanding the generous treatment ac corded the citizens and subjects of the high contracting parties, both Japan and the United States should not be precluded from exercising a broad control over their domestic institutions, whenever the public safety of either state might seem to require it. In the absence of any stipulation to the contrary, it was left to each country to determine the time and circumstances when its public secu rity might be endangered, and what restric tions ought to be placed on the privileges afforded by the treaty. The violation of a treaty by a party thereto is a serious offense. It indicates oftentimes bad faith on the part of the offender, as well as national disregard of a legal duty to a friendly power. It imposes on the offender a consequent duty to make reparation to the aggrieved state or its citizen. The nature of such reparation varies accord ing to the nature of the wrong done. If no reparation be forthcoming, in the absence of any international force capable of enforcing justice, the aggrieved state often takes it upon itself to secure by its own means what it has been denied. The ultimate result may be war. Because of the very seriousness, both of the offense itself and of the conse quences which it may entail, nations are naturally reluctant to admit the violation of a treaty. If the alleged violation relate to a question of interpretation, the matter is given utmost consideration from every point of view before admission of infringe ment is to be expected. In our own country the decision of our courts on the ques tion as to the infringement of a treaty, as has been already shown, is justly regarded as the guide for the political department. Lack of candor on the part of a state to admit violation of an international duty arising from undisputed facts and definitely imposed by international law is always to be keenly deplored. Nevertheless, the pro priety of declining to admit the violation of

a treaty without the most careful investi gation, and until after thorough judicial inquiry, cannot be questioned. On the assumption, however, that there has been a violation of the treaty of 1894, it is worth while to consider our national duty to Japan. It has been observed by some that if California cannot, according to the true interpretation of the treaty, segregate Japanese students, the compact is not binding upon the United States or any part thereof, because the federal govern ment lacks the power to make such an agreement with any foreign state. This argument attempts to limit the treaty-mak ing power of the President and Senate. It questions the scope of the authority of the national agents in dealing with inter national affairs. The constitutional limitation of the treaty-making power has long been a matter of conjecture. The fact that such a limita tion exists has been recognized by our Secretaries of State as well as by the courts. In 1881, Mr. Blaine, when Secretary of State wrote to the Chinese Minister at Washington that a treaty : "must be made in conformity with the Constitution, and where a provision in either a treaty or a law is found to contravene the principles of the Constitution, such provision must give way to the superior force of the Constitution, which is the organic law of the Republic, binding alike on the government and the nation. " 1 In 1886. Secretary Bayard said: "Were the question whether a treaty pro vision which gives to aliens rights to real estate in the states to come up now for the first time, grave doubts might be enter tained as to how far such a treaty would be constitutional. A treaty is, it is true, the supreme law of the land, but it is never theless only a law imposed by the Federal government, and subject to all the limita tions of other laws imposed by the same authority. While internationally binding the United States to the other contracting 1 For. Rel. U. S. 1881, p. 337.