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Published online by Cambridge University Press: 02 September 2013
The Japanese protest of October 23, 1906, against the action of the San Francisco board of education, based on a California statute requiring all children of Mongolian descent to attend the school set apart for orientals, is one of the most puzzling incidents in our recent diplomatic history. It was sufficiently perplexing to the friends and admirers of Japan to learn that her government had created an international issue out of such a trivial matter as the segregation of less than one hundred Japanese pupils in the oriental school of San Francisco. But some of the friends and supporters of the administration were still more surprised to hear that the federal government admitted that the treaty of 1894 with Japan had been violated by this action of the San Francisco board of education, and apparently believed that it had jurisdiction in the premises.
It is true that Secretary Metcalfe's report, which was published on December 19, 1906, also informed us of a considerable number of assaults on Japanese subjects by “hoodlums and roughs,” and of the breaking of windows in Japanese restaurants in San Francisco. These attacks, although subsequent to the earthquake, occurred at a time of great public disorder during which there appears to have been a carnival of crime when the police were powerless to protect life and property; but they seem to have been directed against the Japanese from motives of race prejudice, and not for the purpose of robbery.
1 Mr. Evarts, Secretary of State, to Mr. Marsh. Wharton's Digest iii p. 695. The whole paragraph is a citation from an article by the writer on “The Calvo and Drago Doctrines” in the American Journal of International Law (vol. i, p. 32) to which the reader is referred for a fuller discussion of these points with a citation of authorities.
2 On the meaning and interpretation of the most favored nation clause, see Moore's, Digest of International Law, v, §765.Google Scholar
3 Moore, , Digest, v, §738, p. 178.Google Scholar
4 In Ware v. Hylton (3 Dall. 237), Justice Chase, the strongest champion of the treaty-making power in the history of the United States Supreme Court, expressly declined to give an opinion as to whether a treaty could override the Constitution. He added: “If the court possesses the power to declare treaties void, I shall never exercise it, but in a very clear case indeed.”
5 Moore, , Digest, v, §735, pp. 164–165.Google Scholar
6 Moore, v, §§735–736.
7 §356.
8 See Butler's, Treaty-Making Power, ii, pp. 48–56Google Scholar and notes, for a digest of a number of such cases.
