personal estate, by will or otherwise, and the disposal of property of any sort and in any manner whatsoever, which they may lawfully acquire, the citizens and subjects of each contracting party shall enjoy in the territories of the other the same privileges, liberties, and rights, and shall be subject to no higher imposts or charges than native citizens or subjects of the most favored nation.

The high contracting parties agree that in all that concerns commerce and navigation, any privilege, favor or immunity which either high contracting power has actually granted to any other power shall be granted to each as to the most favored nation."

EXPLANATIONS AND PROTESTS:

Prompt Action of the State Department.

In view of a cablegram from Embassador Wright, at Tokyo, calling attention to the views of the Japanese newspapers concerning the segregation, and to acquaint the Japanese Government with the views of the Federal Authorities, Secretary of State Root sent the following telegram to Embassador Wright, October 23, 1906, as published in The San Francisco Call of October 28, 1906:

"October 23.-To Wright, Tokyo: Troubles your dispatch of 21st are so entirely local and confined to San Francisco that this Government was not aware of their existence until the publication in our newspapers of what had happened in Tokyo. The best information we have been able to obtain indicated that there is nothing even in San Francisco but an ordinary local labor controversy, excited by the abnormal conditions resulting from the earthquake and fire. We cannot prevent men desirous of a labor vote from making speeches in favor of excluding any kind of competition. This does not seem to have gone beyond irresponsible agitation, to which no attention can be paid by each Government, or should be by the people of Japan. The trouble about schools appears to have arisen from the fact that the schools which the Japanese attended were destroyed by the earthquake and have not yet been replacd.

"You may assure the Government of Japan in most positive terms that the United States will not for a moment entertain the idea of any treatment toward the Japanese people other than that accorded to the people of the most friendly European nations, and that there is no reason to suppose that the people of the United States desire our Government to take any different course.

"The President has directed the Department of Justice to make immediate and full investigation, and take such steps as the facts call for to maintain all treaty rights of Japanese subjects in the spirit of the friendship and respect which our people have so long entertained. The purely local and occasional nature of the San Francisco school question should be appreciated when the Japanese remember that the Japanese students are welcome in the hundreds of schools and colleges all over the country. ROOT."

As a sidelight on the above, an interview with Mr. G. Ikeda, Secretary of the Japanese Association of America and one of the prime movers in the Japanese school controversy, as published in The Call of February 1, 1907, will be of interest. Secretary Ikeda is reported as saying:

"In the school controversy we are depending on the United States Government to do the right thing. I made a protest against excluding the Japanese children from the public schools. My protest

was not accepted, and I sent word to all the papers throughout Japan. The news of the controversy was published, came to the attention of the Japanese Government, and was in turn presented to the Government of the United States."

Hon. K. Uyeno, the Consul for Japan in San Francisco, made a protest in the name of his Government, and the writer and other Americans protested to the school authorities.

Statement by Secretary Root.

A Washington telegram, published in The San Francisco Call, February 1, 1907, quotes Secretary Root as saying to a California Congressman:

"Japan has been wounded in her tenderest spot-her national pride. The Japanese regard themselves as the equals of any other people on earth. They believe themselves to be superior, intellectually, morally and in every other way, to the Chinese. Anything which tends to place them on a level with the Chinese before the world is degrading and humiliating to them, and they will resent it. It is most important that tact should be exercised immediately to remove the impression on the part of Japan that the United States is not willing to treat her as one of the most favored nations."

BASIS OF ACTION

IN THE COURTS.

In a communication of the Board of Education to the Hon. K. Uyeno, Consul of Japan, is the following, indicating that the Board of Education welcomed an action in the Courts:

"The Board of Education regrets that it cannot comply with the request you have communicated in your letter-i. e., that the order made on the 11th inst. be rescinded. In conversation with your Secretary (not the Secretary of the Consul, but of the Japanese Association.—Editor), the feasibility of having the State law tested in the Federal Courts has been discussed, and such a disposition of the matter would be highly agreeable to this department. We can but refer you again to that section of the State law under which the order was made, and express regret that you have found cause for protest in the application of the same."

The San Francisco papers expressed the same view, but it is quite clear that it was expected that the Japanese would be on the defense, rather than the Board of Education.

Government's Position Outlined.

The Federal Government brought two actions in the Courts, January 17, 1907, designed to compel the San Francisco Board of Education to accord the Japanese school children the same rights that are given to children of American or European parentage,—one in the Supreme Court of the State, and a bill of equity in the Federal Circuit Court. In the latter, an injunction was asked for restraining the municipal authorities from excluding the Japanese pupils from the public schools of the city which they attended before the famous order of segregation was issued. The Chronicle gives the following

summary:

Summary of Suits.

"It is alleged that the United States Government partly supports the schools of the State, having made a grant of public lands for this purpose, with the understanding that all the schools and institutions benefited thereby should be conducted in conformity with the Constitution of the United States, and all treaties made by the authority of the United States. It is denied that the Japanese are in any sense Mongolians, but are a separate and distinct race, and cannot be properly included among those affected by the provisions of the State code requiring the segregation of all pupils of Indian or Mongolian descent. It is alleged that the segregation of the Japanese children is a violation of the existing treaty rights of Japan, who, it is alleged, are entitled to the same treatment as the most favored nations. It is contended that the law of California does not justify any such action as the Board of Education has taken in respect to the Japanese school children, and that, if it does, then it is null and void."

To make this historic case still more clear to those who are not in a position to consult the legal records, extracts from a statement issued by United States Attorney Devlin setting forth the legal actions instituted by the Federal Government, are given. The first shows the relation of the Japanese child, Aoki, to the case. Mr. Devlin says:

"The United States began two suits today (January 17, 1907) in San Francisco for the purpose of enforcing the provisions of the treaty with Japan giving to the Japanese equal school advantages. One of these actions is brought in the Supreme Court of the State of California in the name of a Japanese child, for the purpose of obtaining a writ of mandamus to compel his admission to one of the public schools, from which he is excluded by the action of the Board of Education. The proceeding in this action is against the Principal of the school in the name of a Japanese child, but to this petition is appended a request, signed by the Attorney-General of the United States, to the effect that the United States be bade a party to the record for the purpose of enforcing its treaty obligations with Japan, or, if such cannot be done in accordance with the practice of the Court, that it be permitted to appear by its proper law officers and be heard to urge the granting of the relief prayed for in the petition.

"The second suit is a very comprehensive bill in equity, filed by the United States in the Federal Circuit Court, in which the members of the Board of Education, the Superintendent of Schools and all the Principals of the various primary and grammar schools of San Francisco are made defendants. The allegations in both proceedings are substantially the same, but in the bill in equity filed by the Government the various facts upon which the Government relies are set out at greater length."

The Treaty the Basis.

The treaty between Japan and the United States is the basis of action in both cases. Continuing, Mr. Devlin says:

"In both proceedings the Government alleges the execution of the treaty with Japan in 1895, which provides that 'in whatever relates to the rights of residence and travel,' the subjects of each party to the treaty shall enjoy in the territories of the other 'the same privileges, liberties and rights as citizens or subjects of the most favored nation.' The State of California having expressly provided that every school in a district must be open to all children of school age resident within the said district, the privilege of such attendance is alleged to be clearly one of the said 'rights of residence' for Japanese children

resident in that State, to be enjoyed on the footing of the most favored nation.

History of School Law.

After outlining the claim of the Government to partial support of the schools of California, in view of grants of public lands for that purpose, which grants could only have been made with the understanding and intent that all schools or other institutions to be benefited thereby would be conducted in conformity with the Constitution of the United States and with all treaties made by the authority of the United States, which constitutes the Supreme Law of the land, Mr. Devlin outlines the history of the school law, which has an important bearing on the case. He says:

"The school system of California, it is alleged, forms a continuous chain of educational establishments, from the primary school to the university, and California has at various times prescribed the qualifications for admission to her public schools. In the bill in equity it is set out that formerly separate schools were provided in California for native born white and colored children; that afterward the word 'white' was stricken from the statute, and in a case brought in California it was held that Chinese children born in California were entitled to admission to all the public schools. For the purpose of preventing this, the section was amended by declaring that the Board of Education might provide separate schools for children of 'Mongolian or Chinese' descent. At that time there were few Japanese children in California, and this amendment was made only to prevent the admission of Chinese children to the schools."

Japanese Not Mongolians.

"The bill alleges," Mr. Devlin continues, "that the Japanese are not in any sense 'Mongolians,' but form a separate and distinct race, and it is asserted that for more than twenty years, and until recently, the authorities in California have conceded that the Japanese are not included in the term 'Mongolian,' and have admitted them to all the public schools."

Hardship and Discrimination.

"It is further shown in these suits," says Mr. Devlin, "that the conflagration which prevailed in San Francisco on April 18, and several days following, impaired the means of transportation and made it more difficult than it had previously been for the pupils to attend schools a long distance from their respective residences. map is attached to the various pleadings, showing the location of the Oriental school and the other schools of San Francisco, and the residences of the Japanese pupils.

A

"The resolution providing for sending Japanese children to the Oriental school was passed on October II, 1906. At that date there were ninety-three pupils attending primary and grammar schools of San Francisco, of whom twenty-five were born in the United States and sixty-eight in Japan. Only those born in Japan are claimed to be protected by the provisions of the treaty. The Government claims and charges that to compel all of the children of Japanese descent thus to attend a single school, without regard to the places of their respective residences or to their convenience, solely by reason of their race or descent, is a hardship and discrimination against all of them, and violates their legal rights under the said treaty; and the Government also sets out that Japanese pupils are allowed to attend

the high schools and schools other than those of the primary and grammar grades without discrimination, and that no such discrimination is exercised against German, French, Italian, or various other foreign children, so that the Japanese are not treated as the most favored nation. It is claimed by the Government that these acts constitute a flagrant violation of the treaty between the United States and Japan; that, properly construed, the law of California does not justify them, and that, if it does, it is null and void.”

The Subject of the Test Case.

Preparatory to the action brought in the Courts, a statement of facts was agreed upon at a conference of the President of the Board of Education, the City Attorney and the United States District Attorney. This is a long document, covering many points, only one of which is here quoted:

"Fifth. That Kei Kichi Aoki was born in the Empire of Japan, and is a subject thereof; that the said infant is of the age of ten years and three months, and is a resident of the City and County of San Francisco, and, with the exception of being of Japanese descent, has the qualifications provided by the laws of the State of California for admission to the public schools. That Michitsuki Aoki is his father; that said father was born in the Empire of Japan, is not a naturalized subject of the United States, and is a subject of the. Empire of Japan, but is a resident and taxpayer of the City and County of San Francisco. That the above-named infant, prior to the adoption of the resolution of the Board of Education above quoted, attended one of the regular public schools of the City and County of San Francisco, known as the Redding Primary School, to which American children and children of other nationalities were admitted, and after the passage of said resolution was prevented from attending said Redding Primary School, and was permitted to attend no other public school than the said Oriental school."

THE POWERS OF THE STATE.

In another communication to the press, Mr. Devlin makes a very important distinction as to the rights of a State in the matter of establishing and maintaining public schools. He says:

"The question is not involved whether California may or may not establish a free school system, as it may be conceded that such a matter is entirely within the discretion of the States; but if the State Constitution does require the maintenance of a free public school system, and does maintain such a system for the children of residents without regard to citizenship, and admits to its schools children of subjects or citizens of France, Germany, Russia or any other European country, the question is: Is the right of education in the public schools of the State not a right secured by the treaty provision with Japan; and is a segregation of Japanese children based on no other consideration than they are Japanese not a denial of equal treatment with the subjects of the most favored nation?”—Chronicle, December 7, 1906.

Two Views of State Rights.

The views of two very prominent men are here given, representing two sides of the vexed question of State rights-Secretary