the ordinary means of earning a livelihood.

It is no answer to

say, as it is argued, that the act proceeds upon the assumption that 'the employment of aliens unless restrained was a peril to the public welfare.' The discrimination against aliens in the wide range of employments to which the act relates is made an end in itself and thus the authority to deny to aliens, upon the mere fact of their alienage, the right to obtain support in the ordinary fields of labor is necessarily involved. The authority to control immigration-to admit or exclude aliens-is vested solely in the Federal Government. The assertion of an authority to deny to aliens the opportunity of earning a livelihood when lawfully admitted to the State would be tantamount to the assertion of the right to deny them entrance and abode, for in ordinary cases they cannot live where they cannot work."

Neither could the State of Arizona declare that it had not totally denied aliens the opportunity to work. For "if the State is at liberty to treat the employment of aliens as in itself a peril requiring restraint, regardless of kind or class of work," it can prohibit absolutely such employment. "The restriction now sought to be sustained is such as to suggest no limit to the State's power of excluding aliens from employment. The discrimination is against aliens as such in competition with citizens in the described range of enterprises and in our opinion it clearly falls under the condemnation of the fundamental law." 79

From these different decisions, the following summary may be made: A State may legally prohibit aliens ineligible to citizenship from owning real property or leasing it for agricultural purposes, since such a power in their hands might conceivably endanger the State; but a State cannot, because of the fourteenth amendment, prohibit aliens from making croppage contracts, which do not give them any control over the land, but under which they may continue to till agricultural land; nor can a State prohibit Japanese guardianships whereby land may be acquired by Japanese minors born in the United States.80

OTHER ANTI-JAPANESE LEGISLATION

At least three other kinds of laws have been aimed at the Japanese on the Pacific Coast. The first has been the alien poll tax which was adopted by the people of California in the election of 1920. Although the tax applied to all aliens, it was aimed at the Japanese. The California Supreme Court, however, made short shift of it, declaring it unconstitutional on the ground 79 239 U. S., 33, 39, 41, 43.

80 Before the passage of the 1920 land law in California, State political leaders admitted that the State had no power to prevent the use of land by Japanese. See Governor Stephen's letter to Secretary Colby, California and the Oriental, Report of the State Board of Control, p. 13; also Chester H. Rowell, "California and the Japanese Problem," New Republic, September 15, 1921.

83

that it violated Article I of the treaty of Japan of 1911, providing for equal taxation, and also that it violated the fourteenth amendment of the Constitution of the United States. 81 Secondly, the State legislature has passed a law regulating foreign-language schools. These are schools maintained by Japanese in which Japanese children are taught the Japanese language, before or after regular school hours. They have been accused of fostering anti-Americanism and Emperor worship. 82 Although a demand was made for their abolition, the 1921 State legislature followed Hawaii's example, & and enacted a regulatory law. It provided (1) that no person shall conduct such a school without a permit from the superintendent of public instruction; (2) that no such permit shall be granted unless the applicant "is possessed of the ideals of democracy, knowledge of American history and institutions, and knows how to read, write and speak the English language"; (3) that each applicant must file an affadavit promising to make his pupils "good and loyal American citizens"; (4) that no private language school shall be conducted in the morning before school hours or during hours while the public schools are in session; and that no pupil shall attend a private language school for more than an hour a day; (5) that the superintendent of public instruction shall have full power to prescribe the course of study and text books in these schools and also the power of inspection. 84

This legislation is undoubtedly constitutional because it is based on the police power and the State's control of its educational system.

85

Finally, some states have passed laws prohibiting aliens from fishing. Oregon and Washington prohibit aliens from engaging in nearly every kind of fishing. 86 Certain kinds of fishing are also prohibited to aliens in Alaska. An attempt was unsuccessfully made in the 1921 California legislature to bar Japanese fishermen from coastwise waters. It is a question whether they now have a right to fish or at least to operate vessels in American waters, under the laws of the United States. According to Revised Statutes 4377 the master of a vessel engaged in coastwise trade or fishing, which requires a license, must swear that he is a citizen of the United States and that the vessel is wholly the property of citizens of the United States. Because of an oversight, the statute contains no penalty for violations of the law. But even if this is corrected, the law can still be easily evaded by the present practice of canneries of themselves owning fishing boats and permitting Japanese to use them. The constitutionality of State laws barring aliens from the privilege of fishing probably will be upheld by the Supreme Court,

81 Ex parte Terui, 200 Pac. 954; Ex parte Kotta, 200 Pac. 957.

82 See V. S. McClatchy "Japanese in the Melting Pot," Annals, cited, pp. 31-32. Hearings, cited, pp. 926 ff., 976.

83 Japan Review, December, 1920; Survey of Education in Hawaii, p. 112.

4 1921 California Statutes, ch. 683.

85 Marshall v. Donovan, 10 Bush (Ky.), 681; Ward v. Flood, 48 Cal. 36; Berea College v. Kentucky, 211 U. S. 45; Freund, Police Power, secs., 266, 698.

86 California and the Oriental, pp. 94–96.

on the ground that fish is public property the use of which is reserved only to citizens. 87

There is also a California statute which prohibits aliens from holding any public employment, except as teachers, etc.; 88 but this affects but few Japanese. 89

"McCready v. Virginia, 94 U. S. 391; Patsone v. Pennsylvania, supra; Geer v. Connecticut, 161 U. S. 519; Manchester v. Massachusetts, 139 U. S. 240; Ex parte Powell, 70 Fla. 363; People v. Setunsky, 161 Mich. 624. Cf. also Consanti v. Darwin, 102 Wash. 402. However, in In re Ah Chong, 5 Pacific Coast Law Journal 451, also 2 Fed. 733, 737, the federal court overthrew a California law of 1880, which prohibited aliens "incapable of becoming electors" from fishing in the waters of the State, on the ground that it violated the equal protection of the laws, guaranteed by the fourteenth amendment.

1915 Cal. Stat., ch. 417. The constitutionality of such statutes has been upheld in Atkins v. Kansas, 197 U. S. 207, and in Heim v. McCall, 239 U. S. 175. There are a few occupations from which aliens may be excluded, involving an oath of allegiance, etc. See "The Legal Status of Aliens," Immigrants in America Review, March, 1915.

"It should be reiterated that a discussion of the wisdom of the policy pursued by the United States toward Japanese residents is beyond the scope of this article. But the writer does not wish any part of it to be construed as favoring such a policy. On the contrary, he believes that it intensifies the Japanese problem on the Pacific Coast, and that it injures the relations of the United States and Japan. See R. L. Buell, The Washington Conference, (1922), p. 302 ff.

THE MANDATORY SYSTEM

BY MARK CARTER MILLS

Assistant in Economics and Sociology in Indiana University

During the progress of the world war there came to thoughtful men everywhere the deepening conviction that fundamental among the causes of modern warfare are the policies that lead to colonial rivalry and the imperialistic exploitation of undeveloped regions and backward peoples.

All belligerent parties looked forward to the peace settlement as an occasion for the satisfaction of territorial ambitions and the settlement of war damage claims in terms of colonial acquisitions. To humanitarians in all nations the peace settlement seemed to offer a precarious but possible occasion for the settlement of colonial claims upon terms of justice and in the interest of the hitherto little regarded native peoples. The plans that were put forward during the war were as various as the individuals and the organizations proposing them. They ranged all the way from clamorous and vindictive schemes for paying the whole cost of the war by colonial seizures to vague proposals of no annexations and the permanent neutralization of Africa. It might almost be said of the war-making statesmen on both sides that their plans varied with the rise and fall of the tides of war. In victory they were bellicose imperialists, in defeat they were despairing advocates of neutralization.

As the war drew to a close the territorial and colonial problems stood out in clearer relief. It was seen that with the victory of the Allied and Associated Powers the principal territories to be disposed of were certain dependencies of the Turkish Empire and the African colonies and island possessions of Germany. It was dimly seen, too, that if the growing sentiment in favor of a league of nations were to crystallize in a tangible organization that this organization would in all probability be a party to the territorial settlements of the peace. The final outcome of this groping for a solution was the Mandatory System embodied in Article 22 of the Covenant of the League of Nations.

The guiding principles that should govern in the settlement of territorial claims had been laid down by President Wilson in his famous Fourteen Points of January 8, 1918. Point Five of the Fourteen Points read, "A free, openminded, and absolutely impartial adjustment of all colonial claims, based upon a strict observance of the principle that in determining all such questions of sovereignty the interests of the populations concerned must have equal weight with the equitable claims of the government whose title is to be determined."

These terms were general and did not touch the questions of the allocation of particular colonies nor the nature of the administrative machinery to be set up, but President Wilson did make a fundamental contribution in his insistence upon the rights of native populations. This emphasis was still more marked in his address of February 11, 1918. In discussing the principles that should be applied in the peace settlement he said, "Second, that peoples and provinces are not to be bartered about from sovereignty to sovereignty as if they were mere chattels and pawns in a game, even the great game, now forever discredited, of the balance of power; but that Third, every territorial settlement involved in this war must be made in the interest and for the benefit of the populations concerned, and not as a part of any mere adjustment or compromise of claims amongst rival states."

In the weeks preceding the Peace Conference various plans for the colonial settlement were prepared by the different Conference delegations but to General Jan C. Smuts, the South African premier, belongs the credit of proposing in connection with a plan for a league of nations the groundwork of a system of internationally supervised colonial administration that came almost immediately to be known as the mandatory plan. Undoubtedly the mandatory plan as a working scheme should be looked upon as the brainchild of General Smuts. However, before considering more fully the plan embodied in General Smuts' "Practical Suggestion" of December 1918, it may be of interest to note in passing that in his book, "The Peace Negotiations, A Personal Narrative," ex-Secretary of State Lansing gives the text of a memorandum prepared on September 21, 1918, giving his ideas at the time of a possible basis for peace and using in this connection the word "mandatory." This memorandum was not made public until the publication of Mr. Lansing's book in 1921. A single point taken from among the twenty-nine points of Mr. Lansing's memorandum will show the sense in which he used the term mandatory:

Sixteenth, Constantinople to be erected into an international protectorate surrounded by a land zone to allow for expansion of population. The form of government to be determined upon by an international commission or by one Government acting as the mandatory of the Powers. The commission or mandatory to have the regulation and control of the navigation of the Dardanelles and Bosphorous as international waterways.

General Smuts' scheme for a League of Nations gave first place to a plan for disposing of the territorial and colonial questions growing out of the war. In this plan the League was spoken of as the successor of the empires and was viewed as the trustee acting in the interest of the community of nations and holding the relation of a guardian to a ward in respect to the mandated territories under its control. His plan was not in any way opposed to the principles laid down by President Wilson but where the Wilson proposals were vague General Smuts' plan was definite and clear in outline. How