their adoption. He shall be furnished, for this purpose, by the Minister of Exterior Relations, with all the information (renseignments) of which he shall be in want, and he shall refer the same to the Executive Directory, as is prescribed by the law of the 8th Floreal, 4th year (27th April, 1796).

Art. 3. The Executive Directory reminds all French citizens that the treaty entered into on the 6th February, 1778, between France and the United States of America, has been, from the terms of the second article, in strict right (de plein droit) modified by that which was entered into in London on the 19th November, 1794, between the United States of America and England. In consequence, agreeably to the seventeenth article of the treaty of London of the 19th November, 1794, all merchandise belonging to an enemy, or not sufficiently proven to be neutral, loaded under the American flag, shall be confiscated; but the vessel on board of which it shall have been found shall be released and returned to the proprietor. It is enjoined on the Commissioners of the Executive Directory to cause to be accelerated by all the means in their power, the judgment on the trials which shall take place, either in relation to the validity of the capture of the cargo, or in relation to freights and demurrage (surestaries).

Agreeably to the eighteenth article of the treaty of London of the 19th November, 1794, there shall be added the following articles to those declared contraband by the twenty-fourth article of the treaty of the 6th February, 1778, viz.: wood for ship building, pitch, tar, and rosin, copper in sheets, canvas, hemp, and cordage, and everything that serves, directly or indirectly, for the armament and equipment of vessels, except unwrought iron and fir-plank. These several articles shall be confiscated whenever they shall be destined or when it is attempted to carry them, to the enemy.

Agreeably to the twenty-first article of the treaty of London of the 19th November, 1794, every individual known to be American, who holds a commission given by the enemies of France, as also every mariner of that nation making a part of the crew of private or public ships (navires ou vaisseaux) of the enemy, shall be, from that act alone, declared a pirate, and treated as such, without allowing him, in any case, to show that he had been forced by violence, menaces, or otherwise.

Art. 4. In conformity to the law of the 14th February, 1793, the regulations of the 21st October, 1744, and of the 26th July, 1778, as to the manner of proving the right of property in neutral ships and merchandise, shall be executed, according to their form and tenor.

In consequence, every American vessel shall be good prize which has not on board a list of the crew (rôle d'equipage), in proper form, such as is prescribed by the model annexed to the treaty of the 6th February, 1778; a compliance with which is ordered by the twenty-fifth and twenty-seventh articles of the same treaty.

Art. 5. It is enjoined on the Commissioners of the Executive Directory to call the severity of the tribunals to the fraudulent manoeuvres of every

ship-owner calling himself a neutral American, or other, on board a vessel in which shall be found, as has frequently been done during the present war, either maritime papers (papiers de mer) in blank, though signed and sealed, or papers, in form of letters, containing the signatures of individuals in blank; or of double passports or sea-letters, which indicate different destinations to the vessel; or double invoices, bills of lading, or any other ship papers, which assign to the whole or to a part of the same merchandise different proprietors or different destinations.

Art. 6. From the regulations of the present decree, that of the 9th Frimaire last (29th November, 1795), concerning the freights and demurrage, is referred to what relates to the demurrage only.

The present decree shall be inserted in the bulletin of the laws. The Ministers of Marine and of the Colonies, of Justice, and of Foreign Relations, are charged with its execution, each one in what concerns him.

EDITORIAL COMMENT

THE DECISION IN CALIFORNIA RELATING TO THE HOLDING

OF LAND BY JAPANESE

In 1920 the State of California passed the so-called Alien Land Law, of which the first and second sections follow:

Section 1. All aliens eligible to citizenship under the laws of the United States may acquire, possess, enjoy, transmit and inherit real property, or any interest therein, in this state, in the same manner and to the same extent as citizens of the United States except as otherwise provided by the laws of this state.

Section 2. All aliens other than those mentioned in section one of this act may acquire, possess, enjoy and transfer real property, or any interest therein, in this state, in the manner and to the extent and for the purpose prescribed by any treaty now existing between the government of the United States and the nation or country of which such alien is a citizen or subject, and not otherwise.1

Although this law has been on the statute book but a short time, it has been the source of much litigation. It is maintained by aliens residing in California, and indeed on the Pacific Coast, that the provisions of the law discriminate unjustly between alien residents, and that they are in conflict with the Treaty of 1911 between the United States and Japan. Suits have been brought against the Attorney General of California, and the District Attorneys of San Francisco and of Los Angeles, to enjoin those officials from enforcing the provisions of the Alien Land Law. One of the most recent is that of Frick and Satow vs. U. S. Webb, Attorney General of California and Matthew Brady, District Attorney of San Francisco, in which the plaintiffs filed their complaint in the District Court of the United States, Northern District of California, Southern Division, in order to secure a temporary injunction against the defendants. As the District Court was of the opinion that it required for its decision the presence of three judges, one of whom should be a Circuit Judge of the United States, it was heard before two District Judges and the Hon. William W. Morrow, Circuit Judge.

The case arose under the second section of the act, and the material questions are thus stated by Judge Morrow:

It is alleged in the complaint that Satow is a subject of the Emperor of Japan, born in the Empire of Japan, of Japanese parents, and is also a resident of California. Satow is an alien, and he is ineligible to citizenship under the laws of the United States. He is therefore one of the

1 Statutes of California, 1921, p. lxxxiii.

aliens who may not acquire, possess, enjoy, and transfer real property or any interest therein, in this state, unless it is so provided in the treaty between this country and Japan. Our attention has not been called to any provision in the treaty between this country and Japan providing that such an alien may acquire, possess, enjoy, and transfer real property or any interest therein in this state, other than to lease land for residential or commercial purposes.

The rights which the Japanese have under the treaty to which Judge Morrow refers are contained in Article 1 thereof:

The citizens or subjects of each of the High Contracting Parties shall have liberty to enter, travel and reside in the territories of the other to carry on trade, wholesale and retail, to own or lease and occupy houses, manufactories, warehouses and shops, to employ agents of their choice, to lease land for residential and commercial purposes, and generally to do anything incident to or necessary for trade upon the same terms as native citizens or subjects, submitting themselves to the laws and regulations there established.2

The question before the court then was, as stated by Judge Morrow:

Is the ownership of 28 shares of the capital stock of the Merced Farm Company, a corporation organized under the laws of the State of California for agricultural purposes, such an interest in real property as to bring him within the prohibitory provisions of this act?

It is alleged that the Merced Farm Company is a California corporation authorized to acquire, possess, enjoy and convey agricultural land; that the Company is, in fact, the owner of approximately 2200 acres of agricultural land situated in Merced County, and that the land "thus owned is not for leasing, for residential, or for commercial purposes". On this state of the law and of the facts Judge Morrow said:

We think the ownership of stock in such a corporation would be an interest in real property which would bring the alien owner of such stock (who is ineligible to citizenship) within the prohibitory provisions of the act, and that under section 2 of the act the Attorney General is authorized by sections 7 and 8 of the act to institute proceedings to have the escheat of such interest in real property in the manner provided by section 474 of the Code of Civil Procedure of this state, and that such proceedings would not be in violation of the treaty between the United States and Japan or the Fourteenth Amendment of the Constitution of the United States.

This was the unanimous opinion of the court. Sawtelle, District Judge, delivered an opinion in which Judge Morrow, Circuit Judge, and District Judge Dooling concurred. It is very short and to the point, and has the advantage of citing the authorities upon which the court reached its conclusions. Its material portion follows:

Charles, Treaties, Conventions, International Acts, Protocols and Agreements between the United States and other Powers, 1910-1913, Vol. 3, p. 77.

It is the unanimous opinion of this court that the plaintiffs herein are not entitled to injunctive relief and that their application for a temporary injunction should be denied; that the California Statute here involved violates no provision of the Constitution of the United States, nor does it conflict with any provision or stipulation of the Treaty between Japan and the United States.

We are entirely satisfied with the decision of the court in the recent cases of Terrance vs. Thompson, 274 Fed. 841; Porterfield and Mizuno vs. Webb, Attorney General, et al., 279 Fed. 114, and O'Brien and Moye vs. Webb, Attorney General, et al., 279 Fed. 117, and believe the opinion in each of those cases is sound law and correctly interprets those provisions of the constitution and treaty here involved.

In Terrance vs. Thompson, 274 Fed. 841 (1921), the nature of the treaty between the United States and Japan, and the extent to which it conferred rights upon Japanese subjects residing within the United States, are considered in detail. In this case the plaintiffs, Terrance, et ab., were the owners of certain land in the State of Washington, who wished to lease their lands to Nakatsuka, a subject of Japan, who desired a lease of the lands. It is stated that the Japanese in question was engaged in farming, wholesale and retail trading in foreign products, and that the leasing of the land in question would be prevented by the enforcement by Thompson, the Attorney General of the State of Washington, of Chapter 50, Laws of Washington, 1921, commonly known as the Alien Land Bill. The United States District Court of the State of Washington held that the treaty with Japan did not grant the right to lease property for agricultural purposes; that the law of the State did not conflict with the provisions of the treaty, and that, therefore, the Attorney General of the State should not be enjoined from enforcing the provisions of the state law.

The act in question prohibited the purchase or lease of lands by an alien who had not declared his intention to become a citizen. Inasmuch as it is held that a Japanese may not become a citizen of the United States, it necessarily follows that he could not legally declare his intention to assume a status which he could not acquire.

In Porterfield and Mizuno vs. Webb, Attorney General, et al., 279 Fed. 114 (1921), it appeared that Porterfield owned 80 acres of land peculiarly adapted to raising vegetables; that he desired to lease the land in question to Mizuno, a subject of the Emperor of Japan, but that he was prevented from so doing because of the California Alien Land Law. For the reason stated in the Terrance case, which was cited with approval, Dooling, District Judge, denied the motion for preliminary injunction against the Attorney General. In O'Brien and Moye vs. Webb, Attorney General, et al., 279 Fed. 117 (1921), it appeared that one O'Brien wished to employ one Inouye, a Japanese subject, lawfully residing in the State of California, to take possession of the land in question for a period of four years "for the purpose of planting, cultivating, and harvesting crops to be grown on owner's land." The owner