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THE GREEN BAG
Mikado full enjoyment of school privileges identical with those shared by pupils of other races. By reason of its traditional re gard for our country, Japan might have lit tle desire to create serious difficulties for the United States in order to secure what might prove to be merely a technical, rather than a substantially beneficial observance of the compact. More cogent still might be the appreciation by Japan of the unwisdom of insisting on the enjoyment by its subjects in California of rights the very exercise of which might arouse deep popular prejudice andopen hostility towards the Japanese throughout our Pacific coast. Once assured, however, that its claim was recognized by our federal courts as a proper interpretation of the treaty of 1894, and that the rule of segrega tion was unlawful, Japan might consent to enter into a new treaty and forego the exercise of the particular educational right. It is unprofitable to speculate as to what might be the policy of the Mikado's Empire. Certain it is, however, that the Japanese government would be entitled to insist as a matter of justice, that for the sacrifice of rights acquired by the present treaty there should be substituted some other privilege of equal value, or that there should be sur rendered by the United States an equivalent benefit. Our government could not expect Japan to give up something of value for nothing. Without attempting to measure by any system of nice balances the value of what our country' might wish Japan to abandon, it must be apparent to anyone who examines carefully the treaty of 1894, that vast and important privileges are therein provided for the citizens and subjects of the high contracting parties. It is needless to consider for which nation they may afford the greater benefit. They do, however, open the way for close social and commercial intercourse befitting the relations of two civilized powers bordering on the same seas. The question, therefore, suggests itself whether a new treaty between the United States and Japan mutually restricting to
any substantial degree the privileges afforded by the convention of 1894 might not, in so far as it checked the commercial and social activities of the two countries, retard pro portionately their good relations in a political sense. For what price the United States, already an Asiatic power, with yearnings for an increasing Oriental trade, ought to forfeit, or even weaken the warm friendship of Japan is an inquiry for the consideration of the diplomat rather than of the lawyer. In conclusion it may be said : First: the contention of Japan as to the meaning of the treaty and alleging violation thereof by the authorities of San Francisco, is one peculiarly adapted for the considera tion of a judicial tribunal. An interpre tation by the Supreme Court of the United States not only would be impartial and just on the merits of the question, but also might meet with the acquiescence of Japan. Secondly : it is extremely improbable that the United States courts would regard the treaty as invalid even in part; nor would the question as to the validity of the treaty be regarded as related to that concerning the interpretation of the articles [which are supposed to sustain the Japanese contention. Thirdly : if the treaty should be found to be violated, the liability of the United States would be manifest, irrespective of the fact that the acts of infringement were com mitted by the authorities of a state. Fourthly : if the treaty should be found to be violated, Japan would technically have a right to insist upon the enjoyment of the privileges denied, irrespective of the diffi culty which such enjoyment might cause the United States. If Japan were called upon to forego existing rights in the negotia tion of a new treaty, that country could rightfully insist either upon the sacrifice by the United States of rights of like value, or upon the receipt from the United States of compensating benefits. Finally : the chief practical inquiry is one
