§ 159. Suits by the government.-For the purpose of enforcing what it deemed to be the rights of the Japanese under the treaty, the United States filed a bill in equity in the circuit court of the United States, in which it alleged that the acts of the school authorities of San Francisco constituted a violation of the treaty, and prevented the United States "from carrying out its treaty obligations to the Empire of Japan and to its citizens and subjects, as is the right and duty of the United States, and imperatively demanded by the national interests. The right of the United States to maintain such a proceeding was based upon the principles announced in the Debs case,94 holding that a court of equity has jurisdiction to issue an injunction for the purpose of aiding the power and duty of the general government to prevent a forcible obstruction of commerce and of the transportation of the mails. In this case the principle was recognized that while the government may use force to prevent any

an ancient feudal system of the Far East to the most advanced standards of modern Europe and America. The friendship between the two nations had been peculiar and close. Was the declaration of that treaty to be set aside? At Kurihama, in Japan, stands a monument to Commodore Perry, raised by the Japanese in grateful appreciation, upon the site where he landed and opened negotiations for the treaty. Was that monument henceforth to represent dislike and resentment? Were the two peoples to face each other across the Pacific in future years with angry and resentful feelings? All this was inevitable if the process which seemed to have begun was to continue, and the Government of the United States looked with the greatest solicitude upon the possibility that the process night continue.

"It is hard for democracy to learn the responsibilities of its power; but the people now, not governments, make friendship or dislike, sympathy or discord, peace or war, between

nations. In this modern day, through the columns of the myriad press and messages flashing over countless wires, multitude calls to multitude across boundaries and oceans in courtesy or insult, in amity or in defiance. Foreign officers and ambassadors and ministers no longer keep or break the peace, but the conduct of each people toward every other. The people who permit themselves to treat the people of other countries with discourtesy and insult are surely sowing the wind to reap the whirlwind, for a world of sullen and revengeful hatred can never be a world of peace. Against such a feeling treaties are waste paper and diplomacy the empty routine of idle form. The great question which overshadowed all discussion of the Treaty of 1894 was the question: Are the people of the United States about to break friendship with the people of Japan? That question, I believe, has been happily answered in the negative.''

158 U. S. 564, 15 Sup. Ct. Rep. 900, 39 L. ed. 1092.

95

unlawful interference with interstate commerce and the transportation of the mails, this right did not prevent it from appealing to the courts for a judicial determination of its powers, and for the prevention of a threatened or continuous act, and that the fact that the government has no pecuniary interest in the matter is not a sufficient answer to an appeal for any proper assistance in the exercise of its powers and the discharge of its As said by Mr. Justice Brewer: "Every government, entrusted by the very terms of its being with powers and duties to be exercised and discharged for the general welfare, has a right to apply to its own courts for any proper assistance in the exercise of the one and the discharge of the other, and it is no sufficient answer to its appeal to one of these courts that it has no pecuniary interest in the matter. The obligation which it is under to promote the interest of all and to prevent the wrongdoing of one resulting in injury to the general welfare is often of itself sufficient to give it a standing in court." 96 A proceeding in mandamus was also brought by the father of a Japanese child who had been excluded from all but the Oriental school, asking that a writ issue reinstating him in the school which he formerly attended. When the controversy was settled by the withdrawal of the resolution objected to, the suits were dismissed.

§ 160. Colored children and the public schools.-The question involved in the Japanese school controversy did not touch the power of the state to legislate for its own citizens and to make distinctions based upon color where equality of rights in substance was not denied. It may be said to be settled law that no constitutional right is violated by the establishment of separate schools for white and colored children. The privileges granted by the law of a state to a child to attend the public schools is not

25 In re Debs, 158 U. S. 564, 15 Sup. Ct. Rep. 900, 39 L. ed. 1092.

In re Debs, 158 U. S. 564, 15 Sup. Ct. Rep. 900, 39 L. ed. 1092.

"People v. Gallagher, 93 N. Y. 438, 45 Am. Rep. 232, affirming 11 Abb. N. C. 187; Cory v. Carter, 48 Ind. 327, 17 Am. Rep. 738; McMillan v. School Committee, 107 N. C. 609, 12 S. E. 330, 10 L. R. A. 823; State v.

97

Maryland Institute, 87 Md. 643, 41 Atl. 126; Roberts v. City of Boston, 5 Cush. 198; State v. McCann, 21 Ohio St. 198; Martin v. Board of Education, 42 W. Va. 514, 26 S. E. 348; Lehew v. Brummell, 103 Mo. 546, 23 Am. St. Rep. 895, 15 S. W. 765, 11 L. R. A. 828; Ward v. Flood, 48 Cal. 49, 17 Am. Rep. 405.

a privilege that a citizen of the United States possesses as such, and a person on the mere status of citizenship has no right to demand admission into such schools. Still the privilege of an education, in obedience to the provisions of a state constitution, is a legal right to the same extent as a vested right in property.98

§ 161. Same facilities for education to be afforded. The legislature, in creating a system of education for the children of the state, cannot exclude colored children from the benefits of such system because of their African descent merely, but a law which provides for the education of children of African descent in separate schools is not in conflict with the Constitution. The separate schools, however, should afford the same facilities for education.99

The question in the Japanese school case was (assuming that a privilege of residence included the right of education), Could the national government, by treaty, guarantee that the subjects of the treaty-making power should be placed on the ground of equality with other aliens and not discriminated against on the assumption of racial inferiority? In this connection it might be urged that an alien would have a better right or a different right than one native-born, because the latter, on account of color, might be sent to a different school. But even if this were so, it all comes back to the proposition whether a treaty may not suspend the power of the state to legislate in any manner obnoxious to the treaty.

A state court may refuse, on grounds of public policy, to apply the doctrine of comity so as to subject by attachment to the payment of an indebtedness due a German corporation from a German subject a fund within the state to which one of its own citizens asserts a claim, where the effect of such action would be to remove the fund to a foreign country, to be administered in favor of the foreign creditors.100

98 Ward v. Flood, 48 Cal. 36, Am. Rep. 405.

17

99 Ward v. Flood, 48 Cal. 36, 17 Am. Rep. 405.

100 Discontento Gesellschaft v. Umbreit, decided February 24, 1908, 9 Advance Sheets, U. S. Sup. Ct. Opinions, 337.

172. Acts of admission affecting navigable waters.

173. Damages for temporary inconvenience.

$174. Building bridges.

§ 175. Head money cases.

$176. Reconciling act and treaty.

§ 177. Absurd conclusion to be avoided.

$178. Repeal by implication.

§ 179. Fair construction not permitting arrest on prior conviction.

§ 180. Reasoning of the court.

§ 181. Extension of treaty by doubtful construction.

182. Abrogation must clearly appear.

183. Dissenting views of Justices Field and Bradley.

184. Same rule as to repeal of statutes by implication.

185. Self-executing treaties.

186. Chinese exclusion cases.

187. Chinese children born in the United States.

§ 188. Application of fourteenth amendment.

§ 189. Right to return.

$ 190.

191.

Power of state to exclude.

Construction of exclusion laws.

§ 192. Conclusiveness of decision of department. 193. Hearing arbitrarily denied.

§ 162. Treaties supreme law of land.-The Constitution declares that treaties shall be the supreme law of the land. The clause on this subject is: "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."1

§ 163. History of clause.-When the constitutional convention had assembled, Governor Randolph, of Virginia, on May 29th offered a series of resolutions for the consideration of the convention, which became known as the "Virginia plan," and in relation to treaties contained this clause: "The national legislature ought to be empowered. . . . to negative all laws passed by the several states, contravening in the opinion of the national legislature, the Articles of Union, or any treaty subsisting under the authority of the Union." Much discussion took place in the convention over this clause, it being objected that the states would become disgusted, and Luther Martin stated that he considered the clause improper, and inquired whether the laws of the states were to be transmitted to the general legislature before they could become operative. By others the provision was thought necessary, and it was urged that unless a negative power existed, the propensity of the states to disarrange and embarrass the system could not be restrained. The clause was defeated by a vote of seven to three, and then the following resolution introduced by Luther Martin was adopted: "That the legislative acts of the United States, made by virtue and in pursuance of the Articles of Union, and all treaties made and ratified under the authority of the United States, shall be the supreme law of the respective states, so far as these acts or treaties shall relate to the said states, or their citizens and inhabitants; and that the judiciaries of the several states shall be bound thereby in their decisions, anything in the respective laws of the individual states to the contrary notwithstanding."2 The proposition, although adopted, was referred to the Committee on Detail, who reported the provision thus:

"Article VIII. The acts of the legislature of the United States made in pursuance of this Constitution, and all treaties made under the authority of the United States, shall be the supreme law of the several states, and of their citizens and inhabitants; and the judges in the several states shall be bound thereby in their 1 Art. VI, cl. 2. 21 Elliot, 207, V, 322.