treaty, as were the subjects and citizens of France-he having invoked the benefit of the 'most-favored-nation' clause in the Italian treaty with the United States."42

§177. Rights of Residence.-Article VI of the treaty with China of 1868 has been on numerous occasions before the Federal courts for construction. This article reads: "Citizens of the United States visiting or residing in China shall enjoy the same privileges, immunities or exemptions in respect to travel or residence as may there be enjoyed by the citizens or subjects of the most-favored-nation; and, reciprocally, Chinese subjects visiting or residing in the United States shall enjoy the same privileges, immunities and exemptions in respect to travel or residence as may there be enjoyed by the citizens or subjects of the mostfavored-nation." It was held by the circuit court, district of California, that a provision in the constitution of the State of California, which prohibited the employment by a corporation formed under the laws of the State, in any capacity, of any Chinese or Mongolian, and an act of the legislature of that State, which provided for the punishment of violations of this provision, were in conflict with the treaty with China and were therefore void. Mr. Justice Sawyer said: “Any legislation or constitutional provision of the State of California which limits or restricts that right to labor to any extent, or in any manner not applicable to citizens of other foreign nations visiting or residing in California, is in conflict with this provision of the treaty; and such are the express provisions of the constitution and statute in question."43 An act of the legislature of Oregon which prohibited the employment of Chinese laborers on street improvements or public works, and at the same time permitted all other aliens so to be employed, was declared by Mr. Justice Deady in the circuit court, district of Oregon, to be in conflict with the treaty between the United States and China, which, by its most-favored-nation clause, secured to the Chinese residents the same right to be employed and to labor for a living as the subjects of any other nation." In an earlier

44

42 Succession of Rixner, 48 La. Ann. 552, 565. See Frederickson v. State of Louisiana, 23 How. 445; Prevost v. Greneaux, 19 How. 1; Duck Lee v. Boise Development Co., 21 Idaho 461.

43 Parrott's Case, 6 Sawy. 349, 375.

44 Baker v. City of Portland, 5 Sawy. 566.

45 See also I. M. Ludington's Sons, 131 N. Y. S. 550; People v. Warren, 34 N. Y. S. 942.

case the same judge said: "Article VI of the treaty with China of July 28, 1868, provides that citizens and subjects of the two nations shall respectively enjoy the same privileges, immunities or exemptions, in respect to travel or residence 'within the country of the other,' as may there be enjoyed by the citizens or subjects of the most-favored-nation. The right to reside in the country with the same privileges as the subjects of Great Britain or France, implies the right to follow any lawful calling or pursuit which is open to the subjects of these powers. Therefore the provisions in the mining regulations of Poorman creek, which, in effect, forbid Chinamen from working in a mining claim for themselves or others, as well as the clause of the State constitution to the same effect, seem to be in direct conflict with this article of the treaty; and if so, are therefore void." In declaring a statute of the State of California, which prohibited all aliens incapable of becoming electors of the State from fishing in the waters of the State, to be in contravention of Articles V and VI of the treaty with China, Mr. Justice Sawyer said: "Citizens of other States having no property right which entitles them to fish against the will of the State, a fortiori the alien, from whatever country he may come, has none whatever in the waters or the fisheries of the State. Like other privileges he enjoys as an alien by permission of the State, he can only enjoy so much as the State vouchsafes to yield to him as a special privilege. To him it is not a property right, but, in the strictest sense, a privilege or favor. To exclude the Chinaman from fishing in the waters of the State, therefore, while the Germans, Italians, Englishmen and Irishmen, who otherwise stand upon the same footing, are permitted to fish ad libitum, without price, charge, let, or hindrance, is to prevent him from enjoying the same privileges as are 'enjoyed by the citizens or subjects of the most-favored-nation'; and to punish him criminally for fishing in the waters of the State, while all aliens of the Caucasian race are permitted to fish freely in the same waters with immunity and without restraint, and exempt from all punishments, is to exclude him from enjoying the same immunities and exemptions ‘as are enjoyed by the citizens or subjects of the most-favored-nation'; and such discriminations are in violation of Articles V and VI of the treaty with China, cited in full in Parrott's case. The same privileges which are granted to other

46 Chapman v. Toy Long, 4 Sawy. 28, 36.

aliens, by treaty or otherwise, are secured to the Chinaman by the stipulations of the treaty. Conceding that the State may exclude all aliens from fishing in its waters, yet if it permits one class to enjoy the privilege, it must permit all others to enjoy, upon like terms, the same privileges whose governments have treaties securing to them the enjoyment of all privileges granted to the mostfavored-nation."47 The circuit court, northern district of California (Sawyer, C. J.), held an ordinance of the city of San Francisco, which made it unlawful for any Chinese to locate, reside, or carry on business within the limits of the city and county of San Francisco, except in a certain prescribed district, and which required all Chinese inhabitants theretofore located outside the prescribed district to remove within a specified time, to be in contravention of our treaty pledge with China. Likewise, the circuit court, southern district of California (Ross, D. J.), held that a covenant in a deed not to convey or to lease to a Chinaman, being at variance with our treaty with China, was not enforceable in a court of equity of the United States. Mr. Justice Field, in circuit, in declaring an ordinance of the city of San Francisco, which arbitrarily prohibited the conduct of the laundry business within certain sections of the city, to be in conflict with the treaty provisions with China, said: "The petitioner [a subject of the Emperor of China] is an alien, and under the treaty with China is entitled to all the rights, privileges, and immunities of subjects of the mostfavored-nation with which this country has treaty relations. Being a resident here before the passage of the recent act of Congress, restricting the immigration of subjects of his country, he has, under the pledge of the nation, the right to remain, and follow any of the lawful ordinary trades and pursuits of life, without let or hindrance from the State, or any of its subordinate municipal bodies, except such as may arise from the enforcement of equal and impartial laws.”50

49

In a report to the President, January 7, 1893, on a bill then pending in the Senate to prohibit for a period of one year, on account of the prevalence of cholera, the admission into the United States

47 In re Ah Chong, 6 Sawy. 451, 455. See Leong Mow v. Board of Commissioners, 185 Fed. 223.

48 In re Lee Sing (1890), 43 Fed. 359.

49 Gandolfo v. Hartman (1892), 49 Fed. 181. See also Duck Lee v. Boise Development Co. (1912), 21 Idaho 461.

50 In re Quong Woo (1882), 13 Fed. 229, 233.

of any alien coming, for settlement or permanent residence, from any except American countries, Mr. Foster, Secretary of State, said: "The only pertinence of the 'favored-nation' clauses included under the second class, hereinbefore referred to [those securing generally to the citizens or subjects of another country the same privileges of residence and trade as enjoyed by the citizens or subjects of the most-favored-nation], is that the bill puts no restriction upon immigration from American countries. If immigration from those countries were to be allowed on account of some treaty obligation, or as a favor, it might give occasion for other countries to invoke a favored-nation clause in their treaty. Such absence of restriction, however, with reference to American countries is not in fact based upon either, but depends simply upon the fact that the threatened danger which it is the purpose of the legislation to avert does not exist in this hemisphere. I see no opportunity for invoking a favored-nation clause unless the danger in question equally existed in American countries, and the immigration therefrom in magnitude and other respects should make the case exactly the same with respect to both American and European countries, so that a restriction with respect to one and not the other would have in it no element of reasonable discretion, but plainly be an act of discrimination.”51 A case quite different arose in 1900 at the time of the threatened epidemic of bubonic plague. The board of health of the city of San Francisco adopted regulations which prohibited any Asiatic person from leaving the city without first submitting to inoculation with a serum supposed to be preventive, but the administration of which to a person who had been exposed to the disease was dangerous to life. The government of Japan remonstrated against these regulations as in derogation of the rights of travel and residence guaranteed to subjects of Japan in the most-favored-nation clause of Article I of the treaty of 1894.52 The circuit court, northern district of California, held the regulations to be discriminatory and in violation of the constitutional guarantee of the equal protection of the law, without entering into the question of treaty rights. These regulations, said the court, "are directed against the Asiatic race

51 Moore, Int. Law Digest, IV, 153, 157. See, to same effect, North German Lloyd S. S. Co. v. Hedden, 43 Fed. 17.

52 For. Rel., 1900, pp. 737-757; Id., 1901, p. 375.

53 Wong Wai v. Williamson, 103 Fed. 1, 9.

exclusively, and by name.

There is no pretense that previous residence, habits, exposure to disease, method of living, or physical condition has anything to do with their classification as subject to the regulations. They are denied the privilege of traveling from one place to another, except upon conditions not enforced against any other class of people."54

The decision in each of the cases above noted was based upon the fact of discrimination (the inhibitions of the Constitution being therefore sufficient to cover the case), and did not involve the question whether the favor or concession enjoyed by the subjects of other powers, but denied to the claimant, was extended to those other powers gratuitously or in consideration of equivalents. As to what constitutes discrimination against a race, the decisions of the Supreme Court in cases which have arisen under the Fourteenth Amendment to the Constitution afford liberal and not uncertain standards. "The equal protection of the laws is a pledge of the protection of equal laws."55

54 See, for discussion evoked in 1906 by the passage of a resolution by the board of education of San Francisco for the segregation of children of Orientals, Cong. Record, 59th Cong., 2d Sess., 297, 301, 303, 674, 1231, 1234, 1235, 1236, 1237, 1515, 1522, 1579, 3132; Proceedings of the American Society of International Law (April 19-20, 1907), 44, 150, 173, 194, 201, 211, 213.

55 Matthews, J., Yick Wo v. Hopkins, 118 U. S. 356, 369. In the recent case of Truax et al. v. Raich (decided November 1, 1915), the Supreme Court by Mr. Justice Hughes said: "The act [of Arizona of December 14, 1914], it will be observed, provides that every employer (whether corporation, partnership, or individual) who employs more than five workers at any one time 'regardless of kind or class of work, or sex of workers' shall employ 'not less than eighty per cent. qualified electors or native-born citizens of the United States or some sub-division thereof.' It thus covers the entire field of industry with the exception of enterprises that are relatively very small. ✶ ✶ ✶ It is an act aimed at the employment of aliens, as such, in the businesses described. *** It is sought to justify this act as an exercise of the power of the State to make reasonable classifications in legislating to promote the health, safety, morals and welfare of those within its jurisdiction. But this admitted authority, with the broad range of legislative discretion that it implies, does not go so far as to make it possible for the State to deny to lawful inhabitants, because of their race or nationality, the ordinary means of earning a livelihood. It requires no argument to show that the right to work for a living in the common occupations of the community is of the very essence of the personal freedom and opportunity that it was the purpose of the Amendment to secure. Butchers' Union Co. v. Crescent City Co., 111 U.