We then come to the last clause, which is prohibitory of State action. It says, nor shall any State deny to any person within its jurisdiction the equal protection of the laws. Speaking of this clause in its application to State legislation as to colored persons, Justice Strong said: "What is this but declaring that the law in the States shall be the same for the black as for the white; that all persons, whether colored or white, shall stand equal before the laws of the States, and, in regard to the colored race, for whose protection the amendment was primarily designed, that no discrimination shall be made against them by law because of their color?" Strauder v. West Virginia, 100 U. S. 303. We then come to the simple question whether our Constitution and the statutes passed pursuant to it, requiring colored persons to attend schools established and maintained at public expense for the education of colored persons only, deny to such persons "equal protection of the laws."

It is to be observed in the first place that these persons are not denied the advantages of the public schools. The right to attend such schools and receive instruction thereat is guaranteed to them. The framers of the Constitution and the people by their votes in adopting it, it is true, were of the opinion that it would be better to establish and maintain separate schools for colored children. The wisdom of the provision is no longer a matter of speculation. Under it, the colored children of the State have made a rapid stride in the way of education, to the great gratification of every right-minded man. The schools for white and black persons are carried on at a great public expense, and it has been found expedient and necessary to divide them into classes. That separate schools may be established for male and female pupils cannot be doubted. No one would question the right of the legislature to provide separate schools for neglected children who are too far advanced in years to attend the primary department; for such separate schools would be to the great advantage of that class of pupils. So, too, schools may be classed according to the attai: ments of the attendants in the branches taught. That schools may be classed on these and other grounds without violating the clause of the Federal Constitution now in question, must be conceded. But it will be said the classification now in question is one based on color, and so it is; but the color carries with it natural race peculiarities which furnish the reason for the classification. There are differences in races, and between individuals of the same race, not created by human laws, some of which can never be eradicated. These differences create different social relations recognized by all well-organized governments. If we cast aside chimerical theories and look to practical results, it seems to us it must be conceded that separate schools for colored children is a regulation to their great advantage.

It is true Brummell's children must go three and one-half miles to reach a colored school, while no white child in the district is required to go further than two miles. The distance which these children must

go to reach a colored school is a matter of inconvenience to them, but it is an inconvenience which must arise in any school system. The law does not undertake to establish a school within a given distance of any one, white or black. The inequality in distances to be travelled by the children of different families is but an incident to any classification, and furnishes no substantial ground of complaint. People ex rel. King v. Gallagher, 93 N. Y. 438-451.

The fact must be kept in mind, for it lies at the foundation of this controversy, that the laws of this State do not exclude colored children from the public schools. Such children have all the school advantages and privileges that are afforded white children. The fact that the two races are separated for the purpose of receiving instruction deprives neither of any rights. It is but a reasonable regulation of the exercise of the right. As said in the case just cited, "Equality and not identity of privileges and rights is what is guaranteed to the citizen." Our conclusion is that the Constitution and laws of this State providing for separate schools for colored children are not forbidden by, or in conflict with, the Fourteenth Amendment of the Federal Constitution; and the courts of last resort in several States have reached the same result. People ex rel. King v. Gallagher, supra; State ex rel. Garnes v. McCann, 21 Ohio St. 198; Cory v. Carter, 48 Ind. 328; Ward v. Flood, 48 Cal. 36.

A like result was reached in Massachusetts under a constitutional provision similar to the Fourteenth Amendment as to the question in hand. Roberts v. The City of Boston, 5 Cushing, 198. We are, also, of the opinion that our conclusion is in accord with the cases cited from the Supreme Court of the United States, the final arbiter of all such questions.1

[The second point, turning on the want of proper parties, is omitted.]

1 And so Chrisman v. Brookhaven, 70 Miss. 477 (1892). In this case the court (CAMPBELL, C. J.) remarks that, "The Constitution of 1890 embodies by express provision, in s. 207, the rule which has always prevailed in this State, that separate schools shall be maintained for children of the white and colored races."" The same doctrine is held as regards legislation requiring railway companies to "provide equal but separate accommodations for the white and colored races;" in Ex parte Plessy, 11 So. Rep. 948 (La. Dec. 1892). Compare Louisr., &c. Ry. Co. v. Miss., 133 U. S. 587.

In Roberts v. The City of Boston, 5 Cush. 198 (1850), before the Fourteenth Amendment, a similar question was elaborately argued before the Supreme Court of Massachu. setts by Charles Sumner (3 Pierce's Life of Sumner, 40, 41). In an often-cited opinion the court (SHAW, C. J.) said: "The plaintiff, a colored child of five years of age, has commenced this action, by her father and next friend, against the city of Boston, upon the statute of 1845, c. 214, which provides, that any child unlawfully excluded from public-school instruction, in this Commonwealth, shall recover damages therefor, in an action against the city or town by which such public-school instruction is supported. The question therefore is, whether, upon the facts agreed, the plaintiff has been unlawfully excluded from such instruction.

"By the agreed statement of facts, it appears, that the defendants support a class of schools called primary schools, to the number of about one hundred and sixty, designed for the instruction of children of both sexes, who are between the ages of four and

seven years. Two of these schools are appropriated by the primary school committee, having charge of that class of schools, to the exclusive instruction of colored children, and the residue to the exclusive instruction of white children.

The plaintiff, by her father, took proper measures to obtain admission into one of these schools appropriated to white children, but pursuant to the regulations of the committee, and in conformity therewith, she was not admitted. Either of the schools appropriated to colored children was open to her; the nearest of which was about a fifth of a mile or seventy rods more distant from her father's house than the nearest primary school. It further appears, by the facts agreed, that the committee having charge of that class of schools had, a short time previously to the plaintiff's application, adopted a resolution, upon a report of a committee, that in the opinion of that board, the continuance of the separate schools for colored children, and the regular attendance of all such children upon the schools, is not only legal and just, but is best adapted to promote the instruction of that class of the population.

...

"The plaintiff had access to a school, set apart for colored children, as well conducted in all respects, and as well fitted, in point of capacity and qualification of the instructors, to advance the education of children under seven years old, as the other primary schools; the objection is, that the schools thus open to the plaintiff are exclusively appropriated to colored children, and are at a greater distance from her home. Under these circumstances, has the plaintiff been unlawfully excluded from publicschool instruction? Upon the best consideration we have been able to give the sub ject, the court are all of opinion that she has not.

"It will be considered that this is a question of power, or of the legal authority of the committee intrusted by the city with this department of public instruction; because, if they have the legal authority, the expediency of exercising it in any particular way is exclusively with them.

"The great principle, advanced by the learned and eloquent advocate of the plaintiff, is, that by the Constitution and laws of Massachusetts, all persons without distinction of age or sex, birth or color, origin or condition, are equal before the law. This, as a broad general principle, such as ought to appear in a declaration of rights, is perfectly sound; it is not only expressed in terms, but pervades and animates the whole spirit of our constitution of free government. But, when this great principle comes to be applied to the actual and various conditions of persons in society, it will not warrant the assertion that men and women are legally clothed with the same civil and political powers, and that children and adults are legally to have the same functions and be subject to the same treatment; but only that the rights of all, as they are settled and regulated by law, are equally entitled to the paternal consideration and protection of the law, for their maintenance and security. What those rights are, to which individ uals, in the infinite variety of circumstances by which they are surrounded in society, are entitled, must depend on laws adapted to their respective relations and conditions. "Conceding, therefore, in the fullest manner, that colored persons, the descendants of Africans, are entitled by law, in this Commonwealth, to equal rights, constitutional and political, civil and social, the question then arises, whether the regulation in question, which provides separate schools for colored children, is a violation of any of these rights.

"Legal rights must, after all, depend upon the provisions of law; certainly all those rights of individuals which can be asserted and maintained in any judicial tribunal. The proper province of a declaration of rights and constitution of government, after directing its form, regulating its organization and the distribution of its powers, is to declare great principles and fundamental truths, to influence and direct the judgment and conscience of legislators in making laws, rather than to limit and control them, by directing what precise laws they shall make. The provision, that it shall be the duty of legislatures and magistrates to cherish the interests of literature and the sciences, especially the University at Cambridge, public schools, and grammar schools, in te towns, is precisely of this character. Had the legislature failed to comply with this injunction, and neglected to provide public schools in the towns, or should they so far fail in their duty as to repeal all laws on the subject, and leave all education to depend 37

VOL. I. —

IN RE LOOK TIN SING.

CIRCUIT COURT OF THE UNITED STATES, CALIFORNIA. 1884.

[10 Sawyer, 353.]

BEFORE FIELD, Circuit Justice, SAWYER, Circuit Judge, and SABIN, District Judge.1

T. D. Riordan and William M. Stewart, for the petitioner; S. G. Hilborn, United States Attorney, Carroll Cook, Assistant United States Attorney, and John N. Pomeroy, for the United States.

By the Court, FIELD, CIRCUIT JUSTICE. The petitioner belongs to the

on private means, strong and explicit as the direction of the Constitution is, it would afford no remedy or redress to the thousands of the rising generation, who now depend on these schools to afford them a most valuable education, and an introduction to useful life.

'We must then resort to the law, to ascertain what are the rights of individuals, in regard to the schools. By the Rev. Sts. c. 23, the general system is provided for.

· In the absence of special legislation on this subject, the law has vested the power in the committee to regulate the system of distribution and classification; and when this power is reasonably exercised, without being abused or perverted by colorable pretences, the decision of the committee must be deemed conclusive. The committee, apparently upon great deliberation, have come to the conclusion, that the good of both classes of schools will be best promoted, by maintaining the separate primary schools for colored and for white children, and we can perceive no ground to doubt, that this is the honest result of their experience and judgment.

"It is urged, that this maintenance of separate schools tends to deepen and perpetuate the odious distinction of caste, founded in a deep-rooted prejudice in public opinion. This prejudice, if it exists, is not created by law, and probably cannot be changed by law. Whether this distinction and prejudice, existing in the opinion and feelings of the community, would not be as effectually fostered by compelling colored and white children to associate together in the same schools, may well be doubted; at all events, it is a fair and proper question for the committee to consider and decide upon, having in view the best interests of both classes of children placed under their superintendence, and we cannot say, that their decision upon it is not founded on just grounds of reason and experience, and in the results of a discriminating and honest judgment.

"The increased distance, to which the plaintiff was obliged to go to school from her father's house is not such, in our opinion, as to render the regulation in question unreasonable, still less illegal.

"On the whole the court are of opinion, that upon the facts stated, the action cannot be maintained." Plaintiff nonsuit.

Compare West Chester, &c. R. R. Co. v. Miles, 55 Pa. St. 209 (1867). In Board of Edu cation v. Tinnon, 26 Kans. 1 (1881), it was held that in the absence of clear legislative authority, a board of education could not establish separate schools for white and colored persons. For the purpose of the opinion it was assumed, although doubt was intimated, that the legislature might authorize such a separate system. BREWER, J., dissented.

With this case is People v. The Board of Education, 101 Ill. 308 (1882). Compare Coger v. N. W. Packet Co., 37 Iowa, 145 (1873); The Sue, 22 Fed. Rep. 843 (1885); Logwood v. Memphis, &c. R. Co., 23 Fed. Rep. 318 (1885); The Civil Rights Bill, Hughes, 541 (1875). - ED.

1 JUDGE HOFFMAN did not sit on the hearing of this case, but he was on the Bench when the opinion was delivered, and concurred in the views expressed.

Chinese race, but he was born in Mendocino, in the State of California, in 1870. In 1879 he went to China, and returned to the port of San Francisco during the present month (September, 1884), and now seeks to land, claiming the right to do so as a natural-born citizen of the United States. It is admitted by an agreed statement of facts that his parents are now residing in Mendocino, in California, and have resided there for the last twenty years; that they are of the Chinese race, and have always been subjects of the Emperor of China; that his father sent the petitioner to China, but with the intention that he should return to this country; that the father is a merchant at Mendocino, and is not here in any diplomatic or other official capacity under the Emperor of China. The petitioner is without any certificate, under the Act of 1882, or of 1884, and the District Attorney of the United States, intervening for the government, objects to his landing for the want of such certificate.

The first section of the Fourteenth Amendment to the Constitution declares that "all persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside." This language would seem to be sufficiently broad to cover the case of the petitioner. He is a person born in the United States. Any doubt on the subject, if there can be any, must arise out of the words " subject to the jurisdiction thereof.” They alone are subject to the jurisdiction of the United States who are within their dominions and under the protection of their laws, and with the consequent obligation to obey them, when obedience can be rendered; and only those thus subject by their birth or naturalization are within the terms of the amendment. The jurisdiction over these latter must at the time be both actual and exclusive. The words mentioned except from citizenship children born in the United States of persons engaged in the diplomatic service of foreign governments, such as ministers and ambassadors, whose residence, by a fiction of public law, is regarded as part of their own country. This extra-territoriality of their residence secures to their children born here all the rights and privileges which would inure to them had they been born in the country of their parents. Persons born on a public vessel of a foreign country, whilst within the waters of the United States, and consequently within their territorial jurisdiction, are also excepted. They are considered as born in the country to which the vessel belongs. In the sense of public law, they are not born within the jurisdiction of the United States.

The language used has also a more extended purpose. It was designed to except from citizenship persons who, though born or naturalized in the United States, have renounced their allegiance to our government, and thus dissolved their political connection with the country. The United States recognized the right of every one to expatriate himself and choose another country. This right would seem to follow from the greater right proclaimed to the world in the memorable document in which the American colonies declared their independence and separation from the British Crown, as belonging to every human being -- God-given