§ 157. Same subject-Mr. Root's views.-Mr. Root stated that among the most familiar, ordinary and unquestioned exercises of the treaty-making power are reciprocal agreements between nations relative to the treatment which the citizens of each nation American Society of International Law, April 19, 1907. Judge Schackleford Miller, of Louisville, Kentucky, delivered a lecture before the Jefferson School of Law, in which, after citing the clause in the treaty relating to residence, he said: "It will no doubt readily be conceded that the right of the Japanese students to attend the public schools must be founded upon this treaty right of residence or it does not exist. There is no other right or privilege mentioned in the treaty which could even be remotely claimed to embrace the right of attending the public schools. It would seem, however, that a fair construction of the treaty would scarcely extend the privileges of the public schools of a State to unnaturalized foreigners. If the Federal Government had so intended, it is but reasonable to assume that the treaty would have so provided in express terms. It was careful to cover the rights of entry, travel, residence, the succession of personalty, and the disposition of property of all kinds, but it nowhere appears that school privileges were ever considered. "Under the present treaty, therefore, it would seem reasonably clear that the Japanese residents of California have no right to have themselves and their children educated at the public schools and at the public expense." In an article entitled "The Segregation of Japanese Students by the School Authorities of San Franciseo," by Charles Cheney Hyde, published in the Green Bag, Vol. XIX, No. 1, January, 1907, it is said: "It is a benefit to the alien resident in the United States that whenever he may believe that his rights under a treaty are infringed by the act of a single state he may secure a judicial interpretation of the treaty by a competent tribunal. The fact that such an inquiry may be made by a court which is independent of the political department of the government, and free to consider the question of infringement on its merits, is a means of protection to the foreigner. If his contention is sustained, the court, in pursuance of a constitutional provision, will pronounce null and void, and therefore inoperative, any local ordinance or state law which it finds to be in violation of the treaty. Because this means of redress is open to the alien, the United States is justified in requiring that an alleged violation of a treaty by the act of a state should be made the subject of judicial inquiry in an American court before being asserted as a ground for diplomatic intervention. Such has been our constant practice. "In a note to the Chinese Minister, May 27, 1890, the Secretary of State, Mr. Blaine, in reply to a protest from the Chinese government against an ordinance of San Francisco, requiring Chinese subjects there residing to remove from their existing homes and places of business to a particular part of that city, as a violation of Article III of the treaty of 1880 said: "Meanwhile, may I ask your attention to the sixth article of the Constitution of the United States, which shall receive in the territory of the other. "To secure the citizens of one's country against discriminatory laws and discriminatory administration in the foreign countries where they may travel or trade or reside is, and always has been, one of the chief places treaties on the same juridical basis as laws and makes them the supreme law of the land, anything in the constitution or laws of any State to the contrary notwithstanding. By the second section of the third article the judicial power of the United States is made to extend to all cases arising under the treaties. Under these provisions, and the statutes of the United States passed to give them effect, it is believed that the Chinese who are said to have been arrested under the order in question may, in an application to the courts for release from imprisonment or detention, speedily obtain a decision as to their rights and the legality of the order.' "Advantageous as it may be from every point of view, both to the alien and to our own government, that an American tribunal should determine whether a foreigner residing in the United States has been prevented from enjoying the exercise of a treaty right, it cannot be said that the decision of such a question by such a tribunal can fully determine the rightfulness of the claim advanced. When the decision of the court denies the contention of the alien, his government is not bound by the judicial interpretation of the treaty. If, for example, the federal courts should decide that the action of the school authorities of San Francisco was not in contravention of the treaty of 1894 with respect to Japanese subjects there residing, the Emperor of Japan would not be under any obligation to accept the decision as decisive of the rights of his subjects. This exact situation was forcibly commented on by Mr. Blaine in writing to Mr. Comly in Hawaii, June 30, 1881: "I am not aware whether or not a treaty, according to the Hawaiian Constitution is, as with us, a supreme law of the land, upon the construction of which—the proper case occurring— every citizen would have the right to the judgment of the courts. But, even if it be so, and if the judicial department is entirely independent of the executive authority of the Hawaiian government, then the decision of the court would be the authorized interpretation of the Hawaiian government, and however binding upon that government would be none the less a violation of the treaty. In the event, therefore, that a judicial construction of the treaty should annul the privileges stipulated and carried into practical execution, this government would have no alternative and would be compelled to consider such action as the violation by the Hawaiian government of the express terms and conditions of the treaty, and, with whatever regret, would be forced to consider what course in reference to its own interests had become necessary upon the manifestation of such unfriendly feeling.' "It is not unreasonable for a state to feel itself free from any obligation to yield to the interpretation given to the provisions of a treaty by a local tribunal of the other contracting party. The right of a court to do justice between nations-to render, for example, a decision as to the meaning objects of treaty making, and such provisions always have been reciprocal. During the entire history of the United States, provisions of this description have been included in our treaties of friendship, commerce, and navigation with practically all the other nations of the world. Such provisions had been from time immemorial the subject of treaty agreements among the nations of Europe before American independence; and the power to make such provisions was exercised without question by the Continental Congress in the treaties which it made prior to the adoption of our Constitution." He said that it was not open to doubt that when the delegates from the thirteen states "conferred the power to make treaties upon the new National Government in the broadest possible terms and without any words of limitation, the subjects about which they themselves had been making treaties then in force were included in the power. of a treaty, and which shall be legally binding on the signatories thereto, must be founded on their mutual consent. This fact is now generally appreciated by civilized states. It is one of the reasons why nations are willing to agree that disputes concerning the interpretation of treaties, and which cannot be adjusted through diplomatic channels, may be referred to international courts of arbitration, such as the permanent Tribunal at The Hague. "On the other hand, by reason of the learning and integrity of the Supreme Court of the United States, and, therefore, on account of the strong probability that its interpretation of the treaty of 1894 would be the true interpretation, and such as an international court of arbitration would render under similar circumstances, it is not unlikely that the Japanese Government would yield to the decision of that tribunal and admit the correctness of its views. In the present controversy, therefore, it is not to be anticipated that a decision by the highest court of the United 92 92 He called attention to the treaties of 1778 with France and of 1782 with the States-General of the United Netherlands, and of 1785 with Prussia, ratified by the continental Congress on May 17, 1786. He quoted the language of Mr. Bancroft Davis, summarizing the provisions of the Prussian treaty: "The favored nation clause put Prussia on the best footing in the ports of Charleston, Boston, Philadelphia, and New York, no matter what the legislatures of South Carolina, Massachusetts, Pennsylvania, or New York might say. Aliens were permitted to hold personal property and dispose of it by testament, donation, or otherwise, and the exaction of State dues in excess of those exacted from citizens of the State in like cases were forbidden. The right was secured to aliens to frequent the coasts of each and all the States, and to reside and trade § 158. Distribution of governmental powers.-Mr. Root took the view that inasmuch as the rights, privileges and immunities to be given to foreign subjects in the United States and to American citizens in foreign countries form a proper subject of treaty provision within the limits of the treaty-making power, and inasmuch as such rights, privileges and immunities may be accorded in contravention of the laws of any state, it necessarily follows that the treaty-making power alone has the authority to determine what shall be those rights, privileges and immunities. "No state," said he, "can set up its laws as against the grant of any particular right, privilege, or immunity any more than against the grant of any other right, privilege or immunity. No State can say a treaty may grant to alien residents equality of treatment as to property, but not as to education, or as to the exercise of religion and as to burial, but not as to education, or as to education, but not as to property or religion. That would be substituting the mere will of the State for the judgment of the President and Senate in exercising a power committed to them and prohibited to the States by the Constitution. "There was, therefore, no real question of power arising under this Japanese Treaty and no question of State rights. "There were, however, questions of policy, questions of national interests and of State interests, arising under the administration of the treaty and regarding the application of its provisions to the conditions existing on the Pacific coast. "In the distribution of powers under our composite system of government the people of San Francisco had three sets of interests committed to three different sets of officers-their special interest as citizens of the principal city and commercial port of the Pacific coast represented by the city government of San Francisco; their interest in common with all the people of the State of California represented by the Governor and Legislature at Sacramento; and their interests in common with all the people of the United States represented by the National Government at Washington. Each one of these three different governmental agencies had authority to do certain things relating to the treat there. Resident aliens were assured against State legislation to prevent the exercise of liberty of conscience and the performance of religious wor ship; and when dying, they were guaranteed the right of decent burial and undisturbed rest for their bodjes." ment of Japanese residents in San Francisco. These three interests could not be really in conflict; for the best interest of the whole country is always the true interest of every State and city, and the protection of the interests of every locality in the country is always the true interests of the Nation." 93 Speaking of the conference with the officials of San Francisco, he said: "There was, however, a supposed or apparent clashing of interests, and, to do away with this, conference, communication, comparison of views, explanation of policy and purpose were necessary. Many thoughtless and some mischievous persons have spoken and written regarding these conferences and communications as if they were the parleying and compromise of enemies. On the contrary, they were an example of the way in which the public business ought always to be conducted; so that the different public officers respectively charged with the performance of duties affecting the same subject-matter may work together in furtherance of the same public policy and with a common purpose for the good of the whole country and every part of the country. Such a concert of action with such a purpose was established by the conferences and communications between the national authorities and the authorities of California and San Franeiseo which followed the passage of the Board of Education resolution. "There was one great and serious question underlying the whole subject which made all questions of construction and of scope and of effect of the treaty itself-all questions as to whether the claims of Japan were well founded or not; all questions as to whether the resolution of the school board was valid or not-seem temporary and comparatively unimportant. It was not a question of war with Japan. All the foolish talk about war was purely sensational and imaginative. There was never even friction between the two Governments. The question was, What state of feeling would be created between the great body of the people of the United States and the great body of the people of Japan as a result of the treatment given to the Japanese in this country? "What was to be the effect upon that proud, sensitive, highly civilized people across the Pacific, of the discourtesy, insult, imputations of inferiority and abuse aimed at them in the columns of American newspapers and from the platforms of American public meetings? What would be the effect upon our own people of the responses that natural resentment for such treatment would elicit from the Japanese? "The first article of the first treaty Japan ever made with a western power provided: "There shall be a perfect, permanent, and universal peace and a sincere and cordial amity between the United States of America on the one part, and the empire of Japan on the other part, and between their people respectively, without exception of persons or places.' "Under that treaty, which bore the signature of Matthew Calbraith Perry, we introduced Japan to the world of western civilization. We had always been proud of her wonderful development-proud of the genius of the race that in a single generation adapted |