states mentioned in the annex to the Covenant may either, when signing or ratifying the protocol to which the present statutes are joined or at a later moment, declare that they recognize as compulsory ipso facto, and without special agreement in relation to any other member or states accepting the same obligation, the jurisdiction of the court in all or any classes of legal disputes concerning the interpretation of a treaty, any question of international law, the existence of any fact which, if established, would constitute a breach of an international obligation, and the nature or the extent of reparation for a breach of an international obligation.

Declaration may be made unconditionally, or conditionally, or condition of reciprocity on the part of several or certain states or for a certain time.

There was, it appears, a very decided majority in the Assembly in favor of Article 34 of the project as drafted by the Advisory Committee of Jurists. The present article will, however, accomplish much the same purpose. It will allow nations to accept obligatory jurisdiction without forcing those to accept it which would do so unwillingly, if at all. It is well to take a step at a time, for it is only through an infinite series of little steps that the goal toward which the nations tend will be reached. As Mr. Root happily reminded his colleagues of the Advisory Committee at The Hague, "Leg over leg the dog went to Dover." We should not criticize the defects of the plan. We should rather fall upon our knees and thank God that the hope of the ages is in process of realization. JAMES BROWN SCOTT.

THE CALIFORNIA-JAPANESE QUESTION.

The intense prejudice of California against the Japanese is partly racial, partly economic. There is the feeling of white superiority, and there is the dislike of the workmen to be pitted against a competitor who is willing to work harder and live cheaper than himself.

It began with the hostility to the Chinese, invaluable as these people were in California's development. The treaty of 1868, Art. 5, with China had "recognized the inherent and inalienable right of man to change his home and allegiance, and also the mutual advantage of the free migration and emigration of their citizens and subjects respectively." But in 1880, this "inalienable right" was denied by Art. 1 of the treaty of that year, in these words: "Whenever in the opinion of the United States, the coming of Chinese laborers to the United States or their residence therein, affects or threatens to affect the interests of that country" it may regulate, limit or suspend such coming or residence, but may not absolutely prohibit it. This restriction was to apply to laborers only and must be "reasonable."

Still the Pacific Coast was not satisfied, and at its insistence the Geary Act was passed by Congress excluding Chinese laborers altogether, followed (though it should have been preceded) by the convention of 1894, which by Art. 1 sanctioned such exclusion for ten years, to be followed by another term of ten years unless terminated at six months notice. It is curious to note the preamble of this treaty: "And whereas the Government of China, in view of the antagonism and much deprecated and serious disorders to which the presence of Chinese

laborers has given rise in certain parts of the United States, desires to prohibit the emigration of such laborers into the United States."

There was for a long time no such emigration of Japanese subjects to the United States as of Chinese, and no similar regulation and exclusion were demanded. Moreover, the development of the two countries diverged. China remained weak, loosely organized, clinging to her ancient ways. But Japan adopted modern ideas, introduced universal education, and grew in national self-consciousness and pride. The treaty with her in 1894, accordingly, was a compact between equals. Article 1 reads:

In whatever relates to rights of residence and travel; to the possession of goods and effects of any kind; to the succession to personal estate by will or otherwise; and the disposal of property of any sort and in any manner whatsoever which they may lawfully acquire, the citizens or subjects of each contracting party shall enjoy in the territories of the other the same privileges, liberties and rights, and shall be subject to no higher imposts or charges in these respects than native citizens, or subjects of the most favored nation.

Article 2 adds, however, this proviso:

It is, however, understood that the stipulations contained in this and the preceding article do not in any way affect the laws, ordinances and regulations with regard to trade, the immigration of laborers, police and public security which are in force or which may hereafter be enacted in either of the two countries.

This was a treaty of commerce and navigation. It was almost the first to surrender those exterritorial privileges which our nationals had, like other foreigners, enjoyed in Japan. The new status further developed Japanese pride and power.

Then came the war with China over Corea, an easy victory for Japan but ending in her humiliation in being shorn of the full fruits of victory by the intervention of Russia, Germany and France. To avoid such intervention in future, there was framed an alliance with Great Britain, defensive in character, to preserve the status quo in the East.

This series of events testifies to the position of equality in the Society of Nations which Japan had attained. This position was, of course, greatly enhanced by her victory over Russia. This made her one of the great Powers. As the writer interprets the Treaty of Portsmouth, one of its important features was the increase of the Japanese food supply, cereals in Corea and Manchuria, fish in Saghalien and along the Siberian coast. This would argue the desire of the Japanese Government to retain, feed and employ its surplus population within contiguous territory. It was the same problem which faced the Germans, but solved in a legitimate way.

If this surmise is correct, Japanese policy and Pacific Coast prejudice are quite compatible, both desiring to confine the Japanese population within the jurisdiction of the Empire, both discouraging a constant overflow of the surplus of that race into Christian countries. This was coupled in Japan, however, with the penetration of China and a strangle-hold upon Corea.

Consider now the present friction with Japan growing out of the public laws of California since the Russian War. These laws affect the Chinese also, in fact result from the permitted attitude of the State toward the Chinese.

They relate to three questions, that of the schools, that of restricted immigration, that of land holding.

The elementary schools of California are open to children between the ages of six and twenty-one; also to adults "if the governing body of the district deems such admission advisable." Alien adults in pursuit of the English language may well have been on a par scholastically with much younger students. There developed a dislike that white children should mix at school with colored children. There was also objection to propinquity between young white girls and Japanese adults. This found expression in the statute which gave school boards power to exclude "children of filthy or vicious habits; or children suffering from contagious or infectious diseases, and also to establish separate schools for Indian children and for children of Chinese or Mongolian descent." In the last-mentioned case, such children are not to be admitted to the regular schools. These statutes were amended and repealed from time to time. I quote from the law of 1909.

The coupling together in the same sentence of vicious, diseased and Oriental children, was a slap in the face. The separate treatment of those of Mongolian descent was discrimination, setting them apart from other aliens. It would have been possible, one would think, to settle all genuine grievances arising from the mixture of races and ages at school, by giving equality of treatment to all aliens. Then no one race could have complained. But when a proud, highly educated people found itself classed with Indians, Coreans and Chinese, discriminated against and despised, it naturally remonstrated and insisted that its treaty right of the most-favored-nation treatment should be observed. This topic was discussed by Mr. Root with great force and clarity in the first volume of this JOURNAL.

Then there was the immigration question. This related to laborers only. The prejudice and the arguments were much the same as in the case of the Chinese twenty years before. But Japan is not a Power to be treated as China was then treated, without remonstrance. Moreover, as has been argued, the Japanese Government itself was not desirous that its laborers should emigrate. A solution for this difficulty therefore was found in appeals to Governor and Legislature in California to stop action which, by direct violation of treaty, tended to embroil the two Powers, and in the substitution for an exclusion statute of a private understanding, a so-called gentlemen's agreement, to the same purport. This is now operative.

And now comes the land question to disturb our relations. In accordance with the Treaty of 1894, nationals of each contracting party had the "full liberty to enter, travel, or reside in any part of the territories" of the other; access to its courts to defend their rights; and property rights as already recited. Safeguarded by this treaty, came a small but continuous stream of immigration. A considerable percentage sought and worked the land. These Japanese immigrants were naturally gregarious. They were regarded by the white Californians with growing suspicion and dislike. The hostility to the Chinese had been largely urban; hostility to the Japanese is largely agricultural and rural. Agitation of the familiar kind was set on foot and sought expression

in State legislation. After the gentlemen's agreement was reached, this legislation was aimed at land-holding rights under the treaty. By Act 129, approved 1913, Sec. 1, it took this form: "All aliens eligible to citizenship may acquire, possess, enjoy, transmit and inherit real property or any interest therein" like native citizens of the United States.

Since Japanese are incapable of naturalization under our laws and judicial decisions, this amounted to a prohibition of Japanese land owning, slightly camouflaged. But what was to become of their treaty rights? Under our Constitution, no State can make, no State may violate, a national treaty. Therefore, Sec. 2 added that aliens ineligible to citizenship might acquire real property "in the manner and to the extent and for the purposes described by any treaty now existing," etc., "and may in addition thereto lease lands in this State for agricultural purposes for a term not exceeding three years.

If this provision under Sec. 2 is fairly interpreted and carried out, perhaps no injustice is done and no treaty right violated. Nevertheless, as in the school matter, there is a discrimination against those of Mongolian descent as compared with other aliens, a denial of that equal treatment which the most-favored-nation clause demands.

Unfortunately this is not the end. The writer has not been able to obtain the text of the additional legislation as to alien land holding, passed by the people of California by initiative at the November election. But its purport seems only too clear. It prohibits absolutely land ownership by Japanese. It forbids them to lease farm land. It prevents their working land as guardians of their children, who being capable of citizenship might in collusion with their parents evade the prohibition. Nor may Japanese become shareholders in any farm land company. Whether this legislation is aimed at Japanese by name or at persons of Mongolian descent or at persons incapable of citizenship, I am not informed. In any case its intent to debar certain aliens and not others, is evident. It has the same taint of illegal discrimination that has been already remarked. But it is also to all appearance a plain violation of the Treaty of 1894. To excuse it by alleging that Americans cannot own land in Japan, even if this be true, is not to the point, unless it can be shown that our nationals are unequally treated, that they are debarred while other aliens are permitted the privilege.

This then is the parting of the ways. A single State of these United States arrogates to itself the right to change a national treaty. We have seen a long course of aggressive anti-Oriental legislation in California, gradually encroaching upon treaties which are the law of the land, and now culminating in open violation of treaty. Whether Californian prejudice and the action resulting are justified or not, has nothing to do with our question. What we ask is, whether one State is greater than the whole, whether one State may alter at will a treaty made by the United States?

There are three conclusions, growing out of this historical recital, which California should take to heart.

1. If it has a grievance against a foreign Power or its subjects, redress lies not with itself but with the National Government and Congress.

2. If one of the States violates a treaty of the United States, the latter is responsible for the act of the former.

3. Being thus responsible, it must have a power commensurate. If no efficient control exists over State legislative action affecting a foreign Power and its treaty rights, then such control must be provided, not a theoretical control merely, but one prompt and drastic.

It has been reported from time to time that negotiations are under way with Japan to frame a new treaty, that an agreement has been reached, but that the "advice and consent" of the Senate are to be taken before the terms of the treaty are made known. It is well that the Senate's part in treaty-making is again recognized. It is well that our relations with Japan, so needlessly disturbed by the unfriendly acts of California, are to be settled by joint harmonious action. It is all the more necessary that Californian anti-Japanese legislation must be inoperative until a new basis of intercourse is reached.

THEODORE S. WOOLSEY.

RECOGNITION OF NEW GOVERNMENTS

Perhaps the most important question of foreign policy confronting the incoming administration will be that of entering upon trade (and possibly diplomatic) relations with Soviet Russia. The Bolshevik Government at Moscow has now maintained an uninterrupted existence of over three years and established a firm and stable rule throughout the greater part of the former Russian Empire. It has apparently succeeded in strongly entrenching itself in power; and this in the face of a series of revolutions within, aided and abetted by attacks and intrigues from without.

It is not the purpose of this editorial to discuss the wisdom of a policy of recognition so much as to call attention to a few of the many precedents tending to justify such action in our own history.

On August 16, 1792, the American Minister to France, Gouverneur Morris, notified our government that another "bloody" revolution had taken place in Paris, resulting in the deposition of the French King, and asked for instructions as to the course he should pursue. Secretary of State Jefferson replied on November 7th as follows:

It accords with our principles to acknowledge any government to be rightful which is formed by the will of the nation, substantially declared. The late government was of this kind, and was accordingly acknowledged by all the branches of ours; so any alteration of it which shall be made by the will of the nation, substantially declared, will doubtless be acknowledged in like manner. With such a government every kind of business may be done. But there are some matters which I conceive might be transacted with a government de facto, such, for instance, as the reforming the unfriendly restrictions on our commerce and navigation, such as you will readily distinguish as they occur.

In a later instruction to Mr. Morris, dated March 12, 1793, which "has often been cited as a fundamental authority," Jefferson said:

We surely cannot deny to any nation that right whereon our own government is founded -that everyone may govern itself according to whatever form it pleases, and change these

1 See Moore's Digest, I, pp. 120 ff., the source of the citations contained in this editorial.