While the effect of Section 3 is to place non-immigrants outside the reach of the provisions relating to quota and non-quota immigrants, respectively, Section 15 contains provisions to the effect that the admission of certain non-immigrants "shall be for such time as may be by regulations prescribed, and under such conditions as may be by regulations prescribed to insure that" when the period of their temporary admission has expired such aliens will depart from the United States. Under this authority the Secretary of Labor has issued regulations 53 the dual purpose of which is to permit all alien seamen who satisfy the Inspection Officers that they are bona fide members of that calling to enter the United States freely in the pursuit of their calling, and to prevent aliens who are merely pretending to be seamen from entering the United States in violation of law. The time during which a bona fide seaman may remain in ports of this country without reshipping foreign is fixed at sixty days, and any alien seaman remaining longer, it is specified, shall be deemed to have abandoned his status and shall be taken into custody and deported.54

Quite properly, the Secretary does not attempt to exact a bond in cases of this kind. Clearly the language of Section 15 and its references to clauses of Section 3 in connection with the authorization of bonds justify no other conclusion than that bonds could not be exacted. And the history of the legislation most distinctly indicates that the intention was that bonds should not be required in such cases. Suggestions were made for the incorporation in the law of a provision conferring such authority.55 These provisions were opposed, not only before the House committee,56 but before the Senate committee.57 The result was that the bonding proposal in each and every form in which it had appeared was omitted from the measure as finally passed. And it is clearly shown by the debates that Congress concluded that a bonding provision should not be inserted because it would have the effect of repealing those provisions of the Seamen's Act of 1915,58 which confer upon all alien seamen the right freely to go ashore in ports of this country.59 Moreover, an attempt made to exact bonds in the cases of bona fide seamen of Asiatic races, under regulations promulgated in supposed pursuance of the 1917 act, had been disapproved by the courts.60

53 Bureau of Immigration General Order No. 38, dated Sept. 10, 1924.

54 Id., subd. 6, par. (c).

55 See Committee print of H. R. 101, 68th Cong., 1st sess.; Hearings before Committee on Immigration and Naturalization, House of Representatives, 68th Cong., 1st sess., on H. R. 5, H. R. 101, H. R. 561, H. R. 6540, Serial 2-A, pp. 1107-1148; and id., on H. R. 5, H. R. 101, and H. R. 561, Serial 1-A, pp. 152-180.

56 References just given.

57 Hearings before the Committee on Immigration, United States Senate, 68th Cong., 1st sess., on S. 2365 and S. 2576, pp. 198-203.

58 38 Stat. L., 1164.

59 Congressional Record, Vol. 65, Part 6, p. 5830; id., Part 9, p. 8577, pp. 8824-8825. 60 United States ex rel Lum Young v. Stump, 292 Fed., 354, and United States ex rel Ho Chung v. Tod, therein described, id., p. 360.

(b) The mala fide seamen provisions. These are found in Sections 19 and 20, and, like all of the provisions of the seamen's sections 61 of the 1917 act, except those relating to the preparation of crew lists and the prevention of the entry of seamen afflicted with dangerous contagious diseases, refer only to alien seamen "excluded from admission into the United States under the immigration laws." That language, descriptive of the kind of alien seamen intended to be reached by the laws, was construed by the courts 62 to confine the statute to those who were merely pretending to be seamen in an effort to gain unlawful admission to the United States, when inadmissible as immigrants, as no seaman, as such, was excluded from the United States by any of the immigration or exclusion laws. Of course, Congress must be presumed, when it placed in the new law upon this subject provisions relating to seamen and incorporated therein the exact language of the old law, to have readopted that language with knowledge of the judicial construction placed upon it.63

It is unfortunate that this subject has not been more thoroughly dealt with. There is probably no one way in which, heretofore, violations of the immigration law have occurred more frequently or more seriously than through the mala fide adoption of the seamen's calling by aliens of the inadmissible classes. Although the Seamen's Act conferred upon seamen of all nationalities and races the right freely to go ashore in ports of this country, that right is conferred only with regard to those who are bona fide members of the calling and is limited to temporary entry in the pursuit of their calling; and, while this, of course, makes it necessary so to form immigration legislation as not to interfere with such rights of bona fide seamen, it does not prevent the enactment of legislation of a character calculated to give the immigration officials at least a fair chance of preventing violations and evasions of law.

In two rather minor respects the new law is an improvement over the old, to wit: (a) it is made the imperative duty of ship masters to prevent the landing of any seaman until the immigration officers have had an opportunity to examine his crew, and also to prevent the landing at all of any seaman who has been found to be mala fide and inadmissible and ordered held on board; 64 and (b) a rule of evidence is adopted, which is intended

61 Sections 31 to 36.

62 United States ex rel Lum Young v. Stump, 292 Fed., 354, and United States er rel Ho Chung v. Tod, therein described, id., p. 360.

63 Edwards v. Wabash Ry. Co., 264 Fed., 610, 618, C. C. A., 2d Cir. See also Latimer v. United States, 223 U. S. 501; United States v. Cerecedo Hermanos y Compania, 209 U. S. 337; Heald v. District of Columbia, 254 U. S., 20; Von Bremen, McMonnies & Co. v. United States, 168 Fed., 889, C. C. A.; United States v. G. Falk & Bros., 204 U. S., 143.

64 Compare Sec. 20 of the new law with Sec. 32 of the old, and note that the word "negligent" no longer appears in modification of the word "failure"; and see The Nanking, 290 Fed., 769.

65 Subd. (b), Sec. 20.

to increase the incentive upon the part of ship masters against allowing the escape into the country of inadmissible aliens posing as seamen. But these improvements have been more than offset by the failure to have the act provide some reasonably satisfactory method of identifying aliens allowed to go ashore in United States ports on the claim that they are bona fide seamen; and by the fact that, although it was possible under the 1917 act to enforce regulations having their identification by a system of identification cards in mind, provisions which were in the bills until they went to conference contemplating the use of such identification cards were deliberately omitted from the measure before it was enacted into law. The report of the conference committee 66 makes no explanation of this omission; but an explanation of it was made on the floor of the Senate by the Senate manager of the conference.67 It is thus clearly indicated that Congress, negatively at least, disapproved of the identification card system; and the Secretary of Labor has quite properly omitted from his recent regulations concerning alien seamen 68 any reference to the subject. Of course, the incentive to make use of this "loophole" is multiplied each time that the immigration law is made more restrictive; and it is difficult to imagine how the Department can possibly prevent extensive and serious violations of both the quota and the ineligible to citizenship provisions of this act, through the adoption mala fide of the seamen's calling by aliens belonging to nationalities or races excluded by such provisions.

The regulations contain a provision 69 of an eminently fair character with regard to the readmission to the United States of aliens previously lawfully resident here who have gone abroad while employed as seamen. Such an alien when returning and expressing an intention to resume his residence in the United States will be permitted to do so although he possesses no immigration visa. But another provision of the regulations 70 is open to criticism, not only as being calculated to lead to unfair and arbitrary action, but as probably being contrary to law. Under this provision the attempt is made to delegate to subordinate immigration officials final authority to determine whether or not an alien claiming to be a bona fide seaman is such and exclusive power to order, not only the detention on board, but the deportation of such alien. The law " obviously contemplates that aliens detained on board as mala fide seamen by the order of a subordinate official shall have the right of appealing to the Secretary of Labor; otherwise there would have been no occasion to mention the head of the Department in such provision.

66 H. Rep. 716, 68th Cong., 1st sess.

67 Congressional Record, Vol. 65, Part 9, p. 8577.

68 Bureau of Immigration General Order No. 38, dated Sept. 10, 1924.

69 Subd. 4 (a), General Order No. 38.

70 Subd. 4 (b), General Order No. 38.

71 Subd. (a), Sec. 20.

13. The burden of proof provision. Section 23 of the law is constituted of this very important provision. The explanation of it given by the House committee is doubtless correct: 72

An alien seeking to enter the United States should not stand mute, but should assist the Government by showing admissibility if he can. No longer should admissibility be presumed until the Government can marshal its forces to prove inadmissibility. An alien remains within the country not by right, but by sufferance. If the Government challenges him, alleging that he is remaining unlawfully, the burden should be upon him to prove the legality of his sojourn or residence. This means reversal of the present rule, which has operated to the detriment of the United States.

No doubt, referring to the standing mute of aliens, the committee had in mind the important decision of the Circuit Court of Appeals for the Second Circuit in the case of an ex-president of Venezuela.73 The Commissioner General of Immigration, some years ago, called attention to the serious situation that existed in this respect. He said: "We have been in a position (exemplified so aptly by the famous Castro case) where an alien could knock at our doors and upon being asked who and what he was, could give his name and then refuse to answer any questions the purpose of which was to divulge his character and antecedents, and yet could demand admission upon the ground that we had failed to show that he was within one of the classes enumerated in the law as inadmissible. Obviously this situation is deplorable. A nation, no more than a man, should be placed in a position where an outsider can demand the opening of the door without giving a full account of himself and showing that he is a fit person to enjoy the hospitality that he seeks." 74

While, obviously, this burden of proof provision will be of no particular value in the enforcement of the quota provisions of the new law in the cases of aliens who are quota immigrants (for in such cases the possession of a visa is indispensable anyway), the need for amending the law in this respect is no less now than it was when former Commissioner General Caminetti made the observation above quoted. Aliens must still pass muster under all of the previous laws left intact by the new act; but now they must affirmatively prove admissibility, and can not claim in any case that the government has failed to prove inadmissibility. Moreover, with the claims of non-immigrant and non-quota immigrant status which will arise so frequently under the new law, there will be still another field for the operation of this admirable improvement.

72 H. Rep. 350, 68th Cong., 1st sess.

73 United States ex rel Castro v. Williams, 203 Fed., 155.

74 Annual Report of the Commissioner General of Immigration for 1919, p. 290.

3

CHANGES IN THE CONCEPTION OF WAR

BY QUINCY WRIGHT

Of the Board of Editors

The phrase "outlawry of war" has come into current usage during the past few years. It has appeared in a resolution submitted to the United States Senate,' in speeches by Presidents of the United States 2 and in a draft treaty submitted by the Council of the League of Nations to its members. As giving focus to a widespread popular demand for the elimination of war, the phrase doubtless has propaganda value, but some of its legal implications seem to invite examination. Thus, if we are called on to "outlaw war," that is, applying Bouvier's definition, to put war out of the protection of the law, we must assume that war is now within the protection of the law, that it is legal to make war. In fact, in Senator Borah's resolution of February 13, 1923, we read in the preamble:

Whereas, war between nations has always been and still is a lawful institution, so that any nation may, with or without cause, declare war against any other nation and be strictly within its legal rights; and

Whereas, revolutionary war or wars of liberation are illegal and criminal, to wit: high treason, whereas, under existing international law, wars of aggression between nations are perfectly lawful.

It is difficult to tell whether Senator Borah is under the impression that revolutionary wars are "high treason" under international law as well as under the municipal law of the state in question, but at any rate he is clear that wars of aggression are perfectly lawful under international law.

Does existing international law consider war lawful? Many have doubtless concluded that it does from the fact that they can find no authority 1 Submitted by Senator Borah of Idaho, Feb. 13, 1923, Sen. Res. 441, 67th Cong., 4th Sess.

2 “If I catch the conscience of America, we'll lead the world to outlaw war." (Candidate Harding, Sept. 4, 1920). "Contemplating the measureless cost of war and the continuous burden of armament, all thoughtful peoples wish for real limitations of armament and would like war outlawed." (President Harding, opening the Conference on Limitation of Armament, Nov. 12, 1921.) "I personally should favor entering into covenants for the purpose of outlawing aggressive war by any practical means." (President Coolidge accepting the Republican nomination for President, Aug. 14, 1924.) The Democratic party by its platform of 1924 pledged "all its energies to the outlawry of the whole war system."

The draft treaty of disarmament and security proposed by a New York committee and submitted to its members by the Council of the League of Nations heads the first chapter, "Outlawry of Aggressive War." International Conciliation, No. 201, August 1924, p. 343. Printed also in New York Times, June 18, 1924, and Foreign Policy Association, Pamphlet No. 28, June 1924.

Supra, note 1.