"Mr. RAYNER. I say that is a distinction. I am coming to that. Nevertheless it contains a provision that the Japanese treaty does not contain. The Japanese treaty does not give any rights to any public educational institution controlled by the United States.

"Now, as I was going to say, the Japanese treaty contains no such provision as this, and the favored clause does not cover it.

"Mr. FORAKER. Mr. President"The VICE-PRESIDENT. Does the Senator from Maryland yield to the Senator from Ohio?

"Mr. RAYNER. I do.

"Mr. FORAKER. If it would not interrupt the Senator, I would ask him if he can state the respective dates of those two treaties?

"Mr. RAYNER. The Burlingame treaty, February 5, 1870. The ratifications of the Japanese treaty were exchanged by the respective governments on the 21st of March, 1895,

twenty-five years afterwards, and there is not a word of it in this Japanese treaty. The favored-nation clause does not cover it, because this clause is restricted to the objects that are specified in the treaty and no one of these objects relates to educational privileges; and even if there had been a provision in the Japanese treaty similar to the one in the Chinese

of the Government of the United States, and therefore, by virtue of this provision in this treaty, the Chinese enjoy no privileges at all. Therefore, if this clause had been incorporated in the Japanese treaty, as I shall show a little farther on, it would not cover the proposition we are now discussing.

Does

"Mr. FORAKER. Mr. President"The VICE-PRESIDENT. the Senator from Maryland yield further to the Senator from Ohio? "Mr. RAYNER. I do.

"Mr. FORAKER. I wish to call the Senator's attention to the fact that the United States Government has no educational institutions as such, and that immediately following the ratification of the treaty with China, and ever since that, under the clauses granting certain exceptions, Chinese students have been entitled, except as it has been modified by treaty since, to come to this country and seek education in the institutions that are situated within the States and are not at all under the control of the United States Government.

"Mr. RAYNER. There is no doubt about that proposition. Any of the States may admit any Chinese or Jap

anese student or any other sort if they choose. That is entirely within the province of the State, but the question here is a question of alleged discrimination in the public school system of California. Massachusetts or any other State of the Union has a perfect right to admit any Chinese or Japanese who want to come. That does not affect the question, I respectfully submit, that I am discussing. I absolutely deny that the admission of these students into the educational institutions of the State is in compliance with and in furtherance of the treaty.

"I might rest this entire subject right here, because this is an end of the claim of Japan if the treaty does not, either by expression or intendment, contain the controverted matter, but I have arisen for a larger purpose and a deeper inquiry; and inasmuch as what has taken place here may occur over and over again under the treaty-making power of the United States, I shall now proceed to the more important proposition, and that is that this Government has no power under the Constitution of the United States to make any treaty with any foreign government covering the subject in question, or overriding the legislation of any State of the Union in connection therewith.

"THE ISSUES INVOLVED IN THE CONTROVERSY.

"Now, let me quote-because I must say that to me it has been the most interesting subject in constitutional law, at least that I have ever examined or been interested in-the

sixth article of the Constitution. It is not an academic discussion; it is likely to occur over and over again with all our oriental possessions, because if the President persists in his purpose, the day will come when he will demand that he has the right, either under the treaty-making power or under the amendments to the Constitution, to exercise this privilege in connection with the admission of foreign students into the public educational institutions of the States.

"Now, one may read this article of the Constitution without understanding it. Just read it. Let a layman read it. It leaves an impression upon the mind of every man who has not studied the Constitution that the treaty overrides the reserved rights of the States whenever it comes in contact with them. No matter how brilliant the lawyer may be, no matter what his talents or resources may consist of, I do not care for the opinion of anyone who has not thoroughly mastered and analyzed the authorities upon this subject and made the proper discriminations between them:

"This Constitution and the laws of the United States which shall be made in pursuance thereof, and all treaties made or which shall be made under the authority of the United States-'

"Now, that is the distinction that the extreme school plants itself on between these two propositions. When it speaks of laws, it says laws which shall be made in pursuance of the Constitution. When the Constitution speaks of treaties, it says that

all treaties which shall be made under the authority not of the Constitution, but of the United States. I shall, I think, demonstrate within a few moments that there is no possible distinction in the authorities between these two clauses.

"The sixth article, which lies at the bottom of this controversy, reads partly as follows:

"ARTICLE VI. This Constitution and the laws of the United States which shall be made in pursuance thereof, and all treaties made or which shall be made under the authority of the United States, shall be the supreme law of the land, and the judges in every State shall be bound thereby, anything in the constitution or laws of any State to the contrary notwithstanding.'

"I plant myself firmly and unalterably upon the proposition that we can make no treaty that violates any of the provisions of the Constitution of the United States, that the treatymaking power in the sixth article must be construed in pari materia with all the other provisions contained in the Constitution, and if the treaty comes in conflict with any of the limitations of the instrument the treaty must yield and the Constitution prevail.

"As a corollary of this proposition I plant myself upon the doctrine that any treaty that violates Article X of the Constitution and infringes upon the reserved rights of the States which have not been delegated to the General Government, and embraces subjects that belong to the States, and that are not necessary to carry

out the purposes of the Government as defined in the Constitution, is ultra vires and not within the capacity of the Government to make.

"It is my opinion that this subject involves one of the most interesting problems that has ever been before this body, and that the suggestion in the message of the President, with great respect to him, is not of the slightest value here, because in order to arrive at a proper conclusion upon this important inquiry it is necessary to assiduously examine the great mass of precedents, and authorities, and decisions that have been rendered upon the subject, and I am quite sure that I am entirely within bounds when I say that the President has not undertaken this task.

"THE SEVERAL SCHOOLS OF CONSTRUCTION.

"There are two separate schools of construction upon the subject at issue. These schools are professional schools and schools of commentators and text-writers upon the Constitution, and it is not entirely accurate to designate them as the respective advocates of national and States' rights systems.

"One of these schools claim that the treaty-making power is an inherent element of sovereignty, and though it is a conferred power in the Constitution it would exist as an essential attribute of this Govern. ment without delegation, and that when it is once delegated it need not derive its authority from the Constitution, and that whenever it comes in conflict with the provisions

of a State law or a State constitution, by the terms of Article VI of the Constitution the treaty prevails. Some of the adherents of this school have proceeded to the most unfortunate limits in their construction of the treaty-making power, and have held that this power is superior to the Constitution and is not in any manner governed by its inhibitions or limitations.

The second school stands upon the doctrine that the treaty-making power exists for the purpose of carrying out the purposes and objects of this Government as prescribed and defined by the Constitution, and that no treaty is valid that violates the Constitution or that under its provisions surrenders the rights reserved and belonging to the States.

"I am a disciple of the second school, not alone as a party man, but as a student of Constitutional history, and I proceed now to give the reasons for the faith that is in me.

"The most instructive step that I can take in this discussion is to give, in the language of their advocates, the two standards that separate these two political creeds, so that the distinguishing features between them can be clearly and fully comprehended and understood.

"Mr. Charles Henry Butler, the present reporter of the Supreme Court, and a man of great learning and industry, in a valuable text-book that he has written upon the treatymaking power of the United States, which I think is mainly wrong in the conclusions that it reaches, but which is full of the most interesting infor

mation upon the subject, thus states his own views and the views of those who belong to the first school of treaty-making power interpretation that I have referred to:

"First. That the treaty-making power of the United States, as vested in the central Government, is derived not only from the powers expressly conferred by the Constitution, but that it is also possessed by that Government as an attribute of sovereignty, and that it extends to every subject which can be the basis of negotiation and contract between any of the sovereign powers of the world, or in regard to which the several States of the Union themselves could have negotiated and contracted if the Constitution had not expressly prohibited the States from exercising the treaty-making power in any manner whatever and vested that power exclusively in and expressly delegated it to the Federal Government.

"Second. That the power to legislate in regard to all matters affected by treaty stipulations and relations is coextensive with the treatymaking power, and that acts of Congress enforcing such stipulations which, in the absence of treaty stipulations, would be unconstitutional as infringing upon the powers reserved to the States, are constitutional, and can be enforced, even though they may conflict with State laws or provisions of State constitutions.

"Third. That all provisions in State statutes or constitutions which in any way conflict with any treaty stipulations, whether they have been made prior or subsequent thereto,

must give way to the provisions of the treaty, or act of Congress based on and enforcing the same, even if such provisions relate to matters wholly within State jurisdiction.'

"The tenets of the school in which I have been trained are succinctly stated in a masterly way by that eminent constitutional lawyer, the Hon. John Randolph Tucker, in a report that he rendered to the Forty-eighth Congress, and which reads, in part, as follows:

"The language of the Constitution of the United States which gives the character of "supreme law" to a treaty, confines it to "treaties made under the authority of the United States." That authority is limited and defined by the Constitution itself. The United States have no unlimited, but only delegated authority. The power to make treaties is bounded by the same limits, which are prescribed for the authority delegated to the United States by the Constitution. To suppose that a power to make treaties with foreign nations is unlimited by the restraints imposed on the power delegated to the United States would be to assume that by such treaty the Constitution itself might be abrogated and the liberty of the people secured thereby destroyed. The power to contract must be commensurate with and not transcend the powers by virtue of which the United States and their Government exist and act. It cannot contract with a foreign nation to do what is unauthorized or forbidden by the Constitution to be done. The power to contract is limited by the power to do. (3 Story on Const., sec. 1501.)

"It is on this principle that a treaty cannot take away essential liberties secured by the Constitution to the people. The treaty power must be subordinate to these. A treaty cannot alien a State or dismember the Union, because the Constitution forbids both.

"In all such cases the legitimate effect of a treaty is to bind the United States to do what they are competent to do and no more. The United States by treaty can only agree with another nation to perform what they have authority to perform under the constitutional charter creating them. The treaty makes the nexus which binds the faith of the Union to do what their Constitution gives authority to do. A treaty made under that authority may do this; all it attempts to do beyond it is ultra vires-is null, and cannot bind them.'

"In this admirable report and careful review of the treaty-making power Mr. Tucker remarks that

"If the treaty-making power extends to the limits that are claimed for it by the advocates of an inherent right, then a treaty may borrow money, regulate commerce, coin money, establish post-offices, and provide for raising armies and navies of the United States, and may thus annul or paralyze all the powers of Congress, and admit a foreign nation to exact, with the alternative of war, a compliance with these sweeping stipulations in the internal government of the people of the United States.'

"I am aware of the fact that some of the conclusions reached by this eminent statesman in this report have