the terms of the treaty, and found no conflict between them and the local law. The Supreme Court of the United States affirmed the decision of the Supreme Court of California in its construction of the treaty, namely, that "there was no purpose in the Argentine treaty to take away from the States the right of local administration provided by their laws, upon the estates of deceased citizens of a foreign country, and to commit the same to the consuls of such foreign nation, to the exclusion of those entitled to administer as provided by the local laws of the State within which such foreigner resides and leaves property at the time of decease." In view of this construction of the terms of the treaty, the Supreme Court did not pass upon the question of the power of the President and Senate by treaty to confer upon a foreign consul the right claimed."1

§109. Miscellaneous Subjects.-It was held by the Supreme

41 Rocca v. Thompson (1912), 223 U. S. 317. The Surrogate of New York county ruled that Article XIV of the treaty with Sweden of June 1, 1910, gave to consuls of that country a prior right to administer the estate of countrymen dying intestate in the United States; and that under the most-favored-nation clause the consuls of Italy (In re Baglieri's estate (1912), 137 N. Y. S. 175), and Austria-Hungary (In re Jarema's estate (1912), 137 N. Y. S. 176) enjoyed the same right. The Surrogate Courts of Schenectady (In re Lombardi (1912), 138 N. Y. S. 1007), Herkimer (In re Riccardo (1913), 140 N. Y. S. 606), and Erie (In re Madaloni's estate (1913), 141 N. Y. S. 323) counties made similar rulings. In each of these cases the provisions of the treaty were enforced as the law of the land regardless of local statutes. The Court of Appeals has, however, recently construed the provisions of the article as merely adding such foreign consuls to the list of those eligible as administrators so as to enable them to administer upon the estates of their fellow citizens when no one having a prior right under the local law is competent or willing to act, and as not intended to supersede the local law and confer a right of administration upon the foreign consul that is exclusive and permanent to all others. In view of this construction, the court held that, under the code of New York, in case a subject of the King of Italy died, intestate, in the State, leaving a wife, a child, a father and a mother residing in Italy, and a brother residing in the State, the latter, although he had no interest in decedent's estate, was entitled to letters of adminisration thereon in preference to the Italian consul. In re estate of D'Adamo (1914), 212 N. Y. 214, reversing 144 N. Y. S. 429. The ruling in D'Adamo has been followed in In re D'Agostino (1914), 151 N. Y. S. 957, and In re Comparetto (1914), 151 N. Y. S. 961. The same construction has been placed upon the provisions of the treaty by the Supreme Court of Minnesota in AustroHungarian Consul v. Westphal (1912), 120 Minn. 122, and by the Supreme Court of California in Fontana v. Hynes (1915), 146 Pac. 651.

Court, in United States v. Forty-three Gallons of Whiskey, that Congress, under its constitutional power to regulate commerce with the Indian tribes, not only might prohibit the introduction and sale of spirituous liquors in the Indian country, but might extend such prohibition to territory in proximity to that occupied by Indians; that it was competent for the United States, in the exercise of the treaty-making power, to stipulate in a treaty with an Indian tribe that, within the territory thereby ceded, the laws of the United States then and thereafter enacted to prohibit the introduction and sale of spirituous liquors in Indian country should be in full force and effect until otherwise directed by Congress or the President of the United States; and that a stipulation to this effect would operate proprio vigore and be binding on the courts, although the ceded territory was situated within an organized county of a State. The territory in question was part of an organized county of Minnesota; and it was contended that the treaty, so far as it aimed to exclude the jurisdiction of the State over the ceded territory and to interfere with the internal commerce of the State, was an invasion of the rights of the State and to that extent without validity. The court held otherwise. In writing the opinion of the court, Mr. Justice Davis said: "The power to make treaties with the Indian tribes is, as we have seen, co-extensive with that to make treaties with foreign nations. In regard to the latter, it is, beyond doubt, ample to cover all the usual subjects of diplomacy."42

In an opinion dated September 20, 1898, Attorney General Griggs advised that the United States had the power to enter into treaty stipulations with Great Britain for the regulation and protection of the fisheries in waters along the international boundary line between the United States and Canada, although the boundary waters were, on the American side, within the territorial jurisdiction of the several riparian States, and although Congress had no authority in the absence of a treaty to pass laws to regulate or protect fisheries within the territorial jurisdiction of the States. The regulation of fisheries had, he observed, frequently been recognized as a proper subject for international agreement, and in the instance before him such an agreement

42 93 U. S. 188, 197; reaffirmed in 108 U. S. 491, 494. See to like effect, Dick v. United States, 208 U. S. 340; Clairmont v. United States, 225 U. S. 551.

43

seemed necessary for adequate regulation. A treaty for this purpose was signed April 11, 1908, and duly ratified.

In holding that a statute of California, which made it an offense to disinter or remove from the place of burial the remains of a deceased person without first having obtained a permit, for which a fee of ten dollars was charged, did not violate the provision in Article IV of the treaty with China, that Chinese subjects in the United States should enjoy entire liberty of conscience and should be exempt from all disability or persecution on account of their religious faith, Mr. Justice Sawyer said: "Besides, it may well be questioned whether the treaty-making power would extend to the protection of practices under the guise of religious sentiment, deleterious to the public health or morals, or to a subject-matter within the acknowledged police power of the State." In a case, which arose under the South Carolina Dispensary Law of 1892, the United States circuit court, district of South Carolina, held that the right to sell intoxicating liquors was not a right inherent in a citizen or one of the privileges of citizenship within the protection of the Fourteenth Amendment, but a subject within the police power of the States, and that an Italian subject, under Articles II and III of the treaty of 1871, had no greater rights in this respect than a citizen of the United States. Simonton, D. J., however, added: "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 cannot be affected by any treaty stipulations."45 The Supreme Court of Louisiana has held that a quarantine law enacted by the State in the exercise of the police power, for the protection and preservation of public health, which empowered the State Board of Health to prohibit the introduction of persons into any infected portion of the State when in its judgment the introduction of such persons would increase the prevalence of the disease, was not unconstitutional as infringing upon the power of

43 22 Op. Atty. Gen. 215. See also United States v. Rodgers (1893), 150 U. S. 249, 265; People v. Tyler (1859), 7 Mich. 161; International Transit Co. v. City of Sault Ste. Marie (1912), 194 Fed. 522, affirmed in 234 U. S. 333.

44. In re Wong Yung Quy (r88o), 6 Sawy. 442, 451.

45 Cantini v. Tillman, 54 Fed. 969, 976.

46 Compagnie Francaise, &c. v. State Board of Health, 51 La. Ann. 645,

Congress to regulate commerce, or in contravention of treaties of the United States. The court, by Nicholls, C. J., said: "The treaties and laws of the United States must be held to have been passed with reference to and subsidiary to the rightful exercise of the police power by the different States, in aid of the protection and preservation of the public health within their respective borders." The decision of the court was affirmed by the Supreme Court of the United States, but on the ground that there was no conflict between the statute in question and the treaties, since the treaties were not intended to, and did not, deprive the United States of those powers (in this instance exercised by one of the States) necessarily inherent in it and essential to the health and safety of its people." Mr. Justice Brown, in a dissenting opinion, in which Mr. Justice Harlan joined, found, however, a conflict between the State law and treaty provisions, and upheld the latter. "Necessary as efficient quarantine laws are, I know of no authority in the States to enact such as are in conflict with our treaties with foreign nations."48

§110. Extent and Limitations of the Treaty-Making Power as Vested in the Central Government."—In a federal system of government, the sovereign body distributes the powers to be exercised respectively by the central and the local organs of government. The Constitution defines and limits those powers.50 That a particular power may be exercised, it must be deposited in the one or the other, or in both of these organs of government. If not so deposited it remains dormant with the sovereign body, the

47 186 U. S. 380, 393. See also Olsen v. Smith, 195 U. S. 332. 48 186 U. S. 401.

49 See, generally, Moore, Int. Law Digest, V, §736; Anderson, Extent and Limitations of the Treaty-Making Power under the Constitution, Am. Journal of Int. Law, I, 636; Butler, Treaty-Making Power of the United States, I, 5, et seq.; Devlin, Treaty Power, 128 et seq.; Willoughby on the Constitution, I, 493, et seq.; Burr, Treaty-Making Power of the United States; Corwin, National Supremacy; Tucker, Limitations on the TreatyMaking Power under the Constitution.

50 "Sovereignty itself is, of course, not subject to law, for it is the author and source of law; but in our system, while sovereign powers are delegated to the agencies of government, sovereignty itself remains with the people, by whom and for whom all government exists and acts. And the law is the definition and limitation of power." Matthews, J., Yick Wo v. Hopkins, 118 U. S. 356, 370.

people, whose powers are in law unlimited. As by the Constitution of the United States, the entering into treaty engagements is expressly forbidden the States, the power to enter into any treaty, if it exists as a power of government, is vested in the organs of the central government, either finally, or subject to the co-operation of the States in its enforcement. Because of the failure of the States to co-operate with the Congress of the Confederation in fulfilling treaty engagements there was inserted in the Constitution the clear and concise language of Article VI declaring that all treaties made under the authority of the United States are the supreme law of the land, anything in the constitution or laws of any State to the contrary notwithstanding. There can be no doubt that the framers of the Constitution intended to provide for the full and efficacious exercise of the treaty-making power. By the word "made" in the clause, "treaties made, or which shall be made," in the definition of the judicial power of the United States under the Constitution, they intended expressly to include the treaties then existing. In these treaties are found stipulations prohibiting the exaction by any State of the droit d'aubaine or similar duties;51 granting to aliens the right to dispose of goods, movable or immovable, by testament, donation or otherwise, and to receive or to inherit the same,52 and various other rights of residence within the States; conferring on foreign consuls certain rights in the administration of the estates of deceased countrymen and in the adjustment of differences between their countrymen ;54 and dealing with many other of the usual subjects of treaty regulation, which, except for the treaty stipulations, had, under the Articles of Confederation, been entirely within the control of the States. With these treaty provisions the framers of the Consti

51 Art. XI, treaty of commerce of 1778 with France.

52 Art. XI, treaty of commerce of 1778 with France; Art. VI, treaty of 1782 with the Netherlands; Art. VI, treaty of 1783 with Sweden; Art. X, treaty of 1785 with Prussia.

53 Art. IV, treaty of 1782 with the Netherlands; Art. V, treaty of 1783 with Sweden; Art. II, treaty of 1785 with Prussia.

54 Arts. V, VIII, IX, XII, of the convention with France signed November 14, 1788, but not ratified until after the adoption of the Constitution. Its terms had, however, been fully considered and authorized by the Congress of the Confederation.

55 See supra, §20. Notes to Treaties and Conventions (1889 ed.),