PRIVATE RIGHTS AND STATES' RIGHTS. 185 



chusettes was especially referred to in the treaty.'* The better 

 opinion seems to hold that state consent must be obtained/^ though 

 in case of necessity, as to end an unfortunate war, a treaty cession 

 without such consent would doubtless stand. '^'^ 



The interpretation of the guarantee of a " Republican Form of 

 Government " was held by the courts a political question in a case 

 recognizing the legitimacy of the military government set up in 

 Texas after the Civil War.^' Doubtless a treaty putting a state 

 under a protectorate or otherwise subverting its government could 

 be equally well reconciled with the guarantee. Legally, however, 

 the guarantee unquestionably restricts the treaty power. 



The " reserved powers " of the states, however, do not limit 

 the treaty-making power. Powers often claimed to be " reserved 

 powers " may be classified as ( i ) the power to regulate exclusively 

 state land and natural resources; (2) the power to exercise ex- 

 clusive control over public services supported by state taxation ; 

 (3) the power to exercise police control over classes of persons 

 and businesses within the state in behalf of public safety, health, 

 morals and economic welfare. Treaty provisions often guarantee 

 to aliens rights of entry, residence landholding, inheritance, etc., 

 equal to that of citizens or subjects of the most-favored nation. '^^ 

 It has been alleged that such provisions are void in so far as they 

 conflict with the exercise by the States of these " reserved " 

 powers. The issue has been judicially considered in reference to 

 state statutes discriminating against aliens, or aliens of a partic- 



■^^ Art. V of treaty. See Moore, 5: 172-174, supra, sec. 31. This inci- 

 dent is discussed in Fort Leavenworth Railroad Co. v. Lowe, 114 U. S. 

 525, 541, quoting Webster's Works, 5: 99, 6: 273. 



■^5 Dicta in Lattimer r. Poteet, 14 Pet. 14 (1840); Geofroy v. Riggs, 

 133 U. S. 267 (1890); Insular Cases, 182 U. S. 316 (1901) ; Fort Leaven- 

 worth Railroad Co. v. Lowe, 114 U. S. 525, 541; Moore, Digest, 5: 171- 

 17s; Butler, The Treaty Making Power, 1902, i: 411-413, 2: 238, 287-294; 

 Corwin, National Supremacy, 130-134; Wright, Am. Jl. Int. Law, 13: 253. 



76 Supra, sec. 2>2. 

 ' " Texas v. White, 7 Wall. 700. 



■^s Art. XI of the Treaty of 1778 with France and Art. I of the Treaty 

 of 1894 with Japan, superseded by Art. I of the Treaty of 191 1, are examples 

 of this type of provision. 



