rid of it, the more vividly it would remain. Indeed, the only theory of its doing no harm was in the proof against defendant being so overwhelming it was scarcely a make weight in leading to the verdict. But courts cannot proceed on any such theory as this, especially in a criminal case. There is, too, a substantial distinction between criminal and civil cases in such things, because of the necessity of convincing the jury beyond a reasonable doubt.

The balance in a prisoner's favor, howsoever

little it may seem to be worth, must be considered.

LIMITATIONS OF THE TREATYMAKING POWER OF THE PRESIDENT OF THE UNITED STATES WITH THE CONCURRENCE POWER OF THE SENATE-PART II THE APPLICATION OF THESE PRINCIPLES TO THE CONTROVERSY WITH JAPAN AND THE CALIFORNIA LAND LAWS.*

All rights of the citizens of the states of the United States which were not granted to the federal government and embodied in the Constitution of the United States are retained in them and may be exercised through Acts of the legislature of the several states. There is no grant of authority in the Constitution of the United States authorizing Congress to enact laws specifying who may and who may not hold or purchase the title, or hold and lease the uses of lands owned by citizens of the United States. If the people of the United States had granted this authority in the Constitution, then Congress could pass a constitutional law denying any alien the right to purchase and own land used for agricultural purposes, or lease the use of agricultural lands lying within the boundaries of the several states over which they now exercise jurisdiction.

*Part I of this article appeared in last week's issue, page 172.

Article I of the treaty between the United States and the Empire of Japan, proclaimed April 5th, 1911, reads:

"The citizens or subjects of each of the High Contracting Parties shall have liberty to enter, travel and reside in the territories of the other, to carry on trade, wholesale and retail, to own or lease and occupy houses, manufactories, warehouses and shops, and employ agents of their own choice, to lease land for residential and commercial purposes, and generally to do anything incident to or necessary for trade upon the same terms as native citizens or subjects, submitting themselves to the laws and regulations there established."

Therefore, since such rights have not been granted by the Constitution to Congress, but retained by the people, they have the legal right to enact state laws, which prohibit aliens who are ineligible to become citizens of the United States, from owning lands used for agricultural purposes and from leasing the same for a period of more than three years.

These provisions of the California Land Tenure Act1 complained of are the following:

An act relating to the rights, powers and disabilities of aliens and of certain companies, associations and corporations with respect to property in this state, providing for escheats in certain cases, prescribing the procedure therein, and repealing all acts

and parts of acts inconsistent or in conflict herewith.

The people of the State of California do enact as follows:

Section I. All aliens eligible to citizenship under the laws of the United States may acquire, possess, enjoy, transmit and inherit real property, or any interest therein, in this state, in the same manner and to the same extent as citizens of the United States, except as otherwise provided by the laws of the state.

Sec. 2. All aliens other than those mentioned in Section One of this Act may acquire, possess, enjoy and transfer real prop

erty, or any interest therein, in this state, in the manner and to the extent and for the purposes prescribed by any treaty now existing between the government of the United States and the nation or country of which such alien is a citizen or subject, and not otherwise, and may in addition thereto lease lands in this state for agricultural pur'poses for a term not exceeding three years.

Sec. 3. Any company, association or corporation organized under the laws of this or any other state or nation, of which majority of the members are aliens other than those specified in Section One of this Act, or in which a majority of the issued capital stock is owned by such aliens, may acquire, possess, enjoy and convey real property, or any interest therein, in this state, in the manner and to the extent and for the purposes prescribed by any treaty now existing between the government of the United States and the nation or country of which such members or stockholders are

citizens or subjects, and not otherwise, and may in addition thereto lease lands in this state for agricultural purposes for a term not exceeding three years.

The issue raised by the enactment of the California Land Tenure Act (1913) cited above, has been stated by Hon. Frank B. Kellogg, after citing §§ 2 and 3 of the California Act and Article I of the treaty be

tween Japan and the United States (1911), cited above, in the following language:

The question raised, which has received such wide discussion by publicists and journalists, is whether a state may, in violation of a treaty between the United States and a foreign power, regulate the ownership of real estate within its borders by citizens of such foreign country.

I shall not stop to discuss the question of whether the treaty with Japan does give to her citizens within the United States the right to own real estate. It gives them the right to carry on trade, to own houses, manufactories, warehouses and shops, and to lease land for residential and commercial purposes. If citizens of Japan have any right to own real estate in California, it is difficult to see how this law takes away such right, because it provides in substance that such aliens may acquire, possess, enjoy and transfer real estate in the manner and to the extent and for the purposes prescribed by any treaty.

But the question has been squarely raised by the declaration of the Legislature of California, which was intended and understood by the public generally to mean that California claimed such right, notwithstanding any treaty provisions with the federal government.2

The foregoing is a statement of the problem by Hon. Frank B. Kellogg. In his address cited above he undertakes to show that the power vested in the President and with the concurrence power of the Senate to make treaties is very broad, and sufficiently broad to repeal and annul the Land Tenure Acts of California, or any similar acts that might be passed by other states. We undertake in this paper to refute this position.

The Land is the State.-In the United States where a citien of a state dies without heirs and intestate, his personal property as well as his realty, and generally all his property rights, escheat to the state.*

Hence, where a state has passed title of land to a purchaser, and likewise when the United States has sold land to a citizen of a state, and at some point in the line of descent of the title, a holder thereof dies without heirs and intestate, not only the title to the realty, but also that of the personal estate of the deceased passes to the state. The state, therefore, at all times owns a contingent interest in the lands and personal property owned by its citizens. On the other hand, the federal government has no such interest.

Even where, to evade the law prohibiting an alien from holding land, an alien purchases real estate in the name of a trustee on an express trust to permit the alien to take and receive rents and profits, the interest in such trust belong to the state."

In the United States property escheats directly to the state as the sovereign power

9

within whose jurisdiction it is situated, unless the state has by statute directed otherwise. In some states the statutes provide that the escheat shall be to the county, or town, where the property is situated. Land held by grant from the general government in a territory escheats to the United States,10 unless prior to the escheat the territory has been admitted as a state.11

In Canada property escheats to the province in which it is situated, and not to the Dominion.12

It is to be noted here that under the British Contract of North America, under which the government of the Dominion of Canada is governed, there are no constitutional limitations, while in the United States our government is administered under dual forms of constitutional limitations, those of the states and that of the United States.

Thus, neither by the proper exercise of the treaty-making power of the Dominion government of Canada, nor by that of the United States, is either the government of

Canada or of the United States vested with any authority by treaty to control or limit the control of the title or leases of lands of citizens of the states, but, on the contrary, the absolute control of the same is vested in the legislative authority of the citizens of the states.

Not only is there no authority vested by the Constitution in Congress to enact laws undertaking to control the title to lands or leases thereof, or even of that of personal property, but also the Law of Escheat of real and personal property shows conclusively, in its development in the United States and the states thereof, that Congress has no authority to pass laws undertaking

to control the title of personal and real property within the jurisdiction of the states, and has never undertaken to exercise such authority, outside of levying taxes for national purposes.

Social and Economic Phases of the Problem. The basis for the public sentiment which is expressed by the vote of the General Assembly in 1913, in passing the land tenure acts prohibiting aliens incapable of becoming citizens of the United States from purchasing and leasing lands in the state. of California for a period exceeding three years, by the extraordinary majority of 107 for to 5 against, may perhaps be fairly stated in the language of Mr. McFarland, correspondent of Collier's, on June 7, 1913, commissioned to investigate the matter on the ground, who says:

"It was for the small fruit farmer of California fighting for his home and for his American community life against submergence by an Asiatic social and industrial order which forced the anti-alien land bill through the California Legislature. Some of the most beautiful rural districts in the state were in jeopardy.

"Instead, the blame must be laid upon these protesting farmers who refused to stand idly by and see themselves forced out of the homes they had built; off the ranches they had tilled, out of the communities in which their children were being reared.

"In other words, the coming of Japanese into possession or control of the farms of a given community occasions a reduction of white labor employed by approximately 90 per cent--which practically means obliteration.

"The second blighting effect is through social pleasure. There is little use to argue or speculate over whether the two races should dwell together in brotherly affection. The fact is that they will not.

"The Japanese-without meaning any disrespect to the little brown man-does not commend himself to the average American farmer family as a desirable neighbor. He is not overly clean. He is accused of being immoral. It is claimed the Japanese have no marriage ties as we know the institution. Women, if scarce, may be held

beside him."

14

The Supreme Court of the United States in Helm v. McCall, has held that the equality of rights and privileges with citizens of the United States, with respect to security for persons and property, which citizens of Italy are assured by the Italian Treaty, of February 26, 1871,15 is not infringed by the provisions of N. Y. Consolidated Laws,10 that only citizens of the United States may be employed in the construction of public works by or for the state or a municipality, and that in such employment citizens of New York State must be given preference.17

"Are plaintiffs in error any better off under the treaty provision which they invoke in their bill? The treaty with Italy is the one especially applicable, for the aliens employed are subjects of the King of Italy. By that treaty (1871) it is provided:

""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 native of the country, submitting themselves to the laws there established. 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 them

(14) 239 U. S. 175 (Nov. 1915).
(15) 17 Stat. at L. 845.
(16) Chap. 31, Sec 14.

(17) For other cases see Treatise, I. in Digest Sup. Ct. 1908.

"There were slight modifications of these provisions in the treaty of 1913, as follows: That 'the citizens of each of the high contracting parties shall receive, in the states and territories of the other, the most constant security and protection for their persons and property and for their rights *** '19

"Continuing the provision of 1871, the Court of Appeals decided that it does 'not limit the power of the state, as a proprietor, to control the construction of its own works and the distribution of its own moneys.' The conclusion (194) is inevitable, we think, from the principles we have announced. We need not follow counsel in

dissertation upon the treaty-making power or the obligations of treaties when made. The present case is concerned with construction, not power, and we have precedents to guide construction. The treaty with Italy was considered in Patsone v. Pennsylvania, 232 U. S. 138, 145, 58 L. ed. 539, 544, 34 Sup. Ct. Rep. 281, and a convention with Switzerland (as in the present case), which was supposed to become a part of it. It was held that the law of Pennsylvania, making it unlawful for unnaturalized foreign-born residents to kill game, and to that end making the possession of shotguns and rifles unlawful, did not violate the treaty. Adopting the declaration of the court below, it was said 'that the equality of rights that the treaty assures is equality only in respect of protection and security for persons and property.' And the ruling was given point by a citation of the power of the state over its wild game, which might be preserved for its own citizens. In other words, the ruling was given point by the special power of the state over the subject-matter, a power which exists in the case at bar, as we have

seen.

"From these premises we conclude that the labor law of New York and its threatened enforcement do not violate the Fourteenth Amendment or the rights of plaintiffs in error thereunder, nor under the provisions of the treaty with Italy."

The case of Crane v. The People of the State of New York20 was argued and sub

(18) 17 Stat. at L. 846.

(19) 38 Stat. at L. 1670.

(20) Crane v. The People of the State of New York, 239 U. S. 195 (Nov. 29, 1915).

mitted with the case of Heim v. McCall, cited above. It involved the same criminal feature of § 14 of the labor law of the state, which was the subject of the opinion in the Heim case. The public work was the construction of catch or sewer basins. The defense was the unconstitutionality of the law, and that it was in violation of the

treaties of the United States with foreign countries. One of the workmen employed by the defendant was a subject of the King of Italy.

and scope of the treaty-making power of the President and Senate in sustaining a statute of Pennsylvania prohibiting aliens from killing wild game. In the case of Patsone v. Commonwealth of Pennsylvania,22 the court held:

"A resident unnaturalized Italian not

dence. The court sustained the New York statute for the same reasons as given in the Heim case.

The Heim and Crane cases just discussed establish the rule that the state of New York, or any other state, has the sovereign right to prohibit aliens from being employed on public works, on the principle that the citizens of the states contribute the funds through taxes levied on real and personal property, and therefore retain the right to prohibit aliens from the benefits arising by being employed on public works of the state, and limit the preference in such employment to the citizens of that state. Much more, therefore, have the citizens who own the lands of the state, thus taxed for public purposes, the sovereign right to deny aliens the right to purchase or lease lands from citizens of the state, limiting not only the benefit of purchasing and leasing the lands of the states to citizens of the United States, but also the social, moral and economic benefits of the community life of the state to its citizens and those of other

"The equality of rights and privileges with natives of the United States with respect to security for persons or property Italian Treaty of February 26, 1871, art. 3, which citizens of Italy are assured by the is not infringed by the provisions of Pa. Laws 1909, No. 261, p. 466, prohibiting the killing of any wild bird or animal by any of person or property, and 'to that end' such foreign-born person except in defense making it unlawful for any such person to own or be possessed of a shotgun or rifle."

Keeping in mind the statement of conditions under which the California Land Tenure Acts were passed, we direct in particular attention to what the court said at p. 144: "Obviously the question, so stated, is one of local experience, on which this court ought to be very slow to declare that the state legislature was the state legislature was wrong in its facts:"28 and again at pp. 145-146:

"The prohibition of a particular kind of destruction and of acquiring property in instruments intended for that purpose, establishes no inequality in either respect. It is to be remembered that the subject of this whole discussion is wild game, which the state may preserve for (146) its own citizens if it pleases. Goer v. Connecticut, 161 U. S. 519, 529, 40 L. ed. 793, 797, 16 Sup. Ct. Rep. 600. We see nothing in the treaty