rights of common and commuted rents and services dating from feudal times."

The system has much to commend it in cheapness, simplicity and security, and has passed well beyond the experimental stage. Much and positive opposition there seems however to be. No less eminent an authority than Prof. Wigmore has attributed that opposition to the self interest of real estate dealers and abstractors. If such is the case, it is much to the credit of the bar, whose selfish interest is naturally in the same direction, that the Bar Association reports have been, so far as we know, wholly

in favor of the Torrens Law.

Women and the Tariff Laws.

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OHN B. STANCHFIELD, a leader of the New York bar, has dared the lightning of feminine wrath by asserting before the House judiciary committee that women are born smugglers. Accepting for the moment the truth of the statement, though something can, and perchance will, be said on the other side, it presents an interesting point of psychology. It will scarcely be denied that women possess some moral qualities to a greater degree than men. If the converse is likewise true, it merely establishes anew that the sexes, while perhaps equal, are not equivalent. Mr. Stanchfield's statement presents, however, one strange contradiction. Conventionalities live only by force of feminine support. In view of that fact one would expect that women rather than men would most scrupulously avoid those offenses which are mala prohibita. But there are of course cross currents. How much of desire to avoid the tariff on gowns and jewels is the outgrowth of the bargain hunting habit? How much is the result of a feeling of immunity from regulation, bred by generations of masculine chivalry? And in passing from the psychological to the political, if there is a deep seated feminine aversion to customs duties, what is going to happen to the long suffer

into their proper place. They are the exceptions and not the average of life.

Importation of Prize Fight Films.

THE Act of Congress of July 31, 1912 (Fed. Stat. Annot. 1914 Supp. 326) provides that it shall be unlawful "to bring or cause to be brought into the United States from abroad any film or other pictorial representation of any prize fight." But the popular demand for jabs there are now in New York and ready for exhibition films and uppercuts is not to be denied. It is reported that

of the Willard-Johnson encounter at Havana. The manner in which these were obtained discloses an ingenuity worthy of a better cause. A tent was pitched on the boundary line between Canada and the United States. A projecting machine on the Canadian side reproduced the fight pictures and a sensitive film on the American side received them. From the latter the pictures now about to be exhibited were produced. hibited were produced. If, as is to be expected, this device is tested in the federal courts, a most interesting question will be presented. That the intent of the statute is violated is clear enough, but have any of its terms been infringed? Has anything been "brought into" the United States "from abroad"? Nothing connected with these pictures that is now in the United States has ever been abroad. The film that was in Canada has never been even momentarily in the United States. If two men present at the fight had re-enacted it before a camera in the United States no one would claim a violation of the statute. Does it make any difference that the scene was projected across the line in invisible light waves instead of being carried over in the memory of a spectator? Yet the bald fact remains that a film of a prize fight in Cuba is now in the United States. Our sympathies go out to the federal judge who has to unriddle the question.

Advice to Portia.

heritage?

Woes of a Bachelor Judge.

W

HEN the Chicago domestic relations court was established and a judge was assigned thereto from the Circuit bench, the incumbent was chosen with care, not only for his legal ability but for the optimism and idealism which would, it was thought, fit him peculiarly to deal with the questions which the court was constituted to solve. But being a specialist in domestic misery has, it seems, its drawbacks. Judge Hopkins now asks a transfer to some other tribunal. He is a bachelor and entertained the most enthusiastic view as to children and wives and as to the bliss of domestic life; but he now announces that he is so completely disabused on that score that he wants to get out where he will not be compelled to witness all the domestic wretchedness that predominates in Chicago. "I formerly believed," he says, "that domestic love still existed in this world; now I am dubious on that point."

The remedy for the judge's troubles is clear enough; he ought to get married. His optimism was academic and theoretical, and wouldn't stand the strain. All he needs is a good wife at home to straighten his perspective and bring the sordid wrangles which are the staple of his court

ess") in a recent address to college women gave some wholesome advice to young women contemplating the study of the law. But mixed therein were a few things which cause a mere man to smile. For instance: "A girl anticipating a law course should study anything that makes her give her keen attention. She should even study housework." But that is not the gem which we started out to share with our readers. As reported in the press, at the close of some remarks to the budding Portia on avoiding flirtations, the speaker said: "She should regard the men as if they were law books." Now this seems to need some explanation. Surely the gifted speaker knows that the average woman holds a book in her lap when she wants to regard it. She doubtless knows also that the lawyer's first act when acquiring a new law book is to label it visibly as his personal property. Of course she may have been thinking that a book can be shut up, but that is not the way in maxim "Beware of the man with one book" be now renwhich a good student uses his books. And may the ancient

dered "Beware of the woman with one beau"?

ploy of the great corporations. Corporate service, he asserted, tends to dwarf independence and warp the viewpoint, making the lawyer little more than a corporate instrument, looking on public affairs wholly with a view to their effect on the corporate interest. As a solution he suggested the adoption of the English system of barristers and solicitors. While the evil is doubtless a real one, the value of the remedy proposed is questionable. It is hard to see where it would touch the heart of the subject. The great corporation would have its regular solicitor. He would habitually retain a particular barrister, whose time would thus be so occupied as to lead him to refuse all other retainers, and we would be just where we started. If things could be changed by altering their names, how quickly we would coax a coy millennium out of the roseate future and put salt on its tail. The best men will not leave the corporate service for that of the public till the latter is the more attractive. Not necessarily in money; hazarding a little optimism, money is not the greatest human incentive. When the lawyer who serves the public interest not only makes a decent livelihood but stands higher in

the public esteem, prior in preferment for judicial office, than the one whose principal activities, however legitimate, are on behalf of corporations, natural laws will take care of the rest. The power of corporate monopolies and of political machines to command the services of the strongest and ablest men rests on a single foundation-they remember and reward their friends while the public forgets.

Witchcraft.

IT T is now over two centuries since a distinguished English judge declared that he knew there was such a thing as witchcraft, first, because an act of Parliament forbade it, second, because the Bible referred to it, and third, because trustworthy witnesses testified to it. Commanding intellects, Coke, the mighty Bacon, the wise Sir Matthew Hale, Martin Luther, John Wesley, believed in witchcraft. Profound theologians contended that a disbelief in it was rank heresy, and cited Scripture to the point. As lately as 1896 it appeared in an action for libel (Oles v. Pittsburg Times, 2 Pa. Super. Ct. 130) that a published statement that a woman was a witch caused her to be stoned on the streets and shunned by a Pennsylvania community. Just now the yellower journals have lurid headlines telling of the projected prosecution of a witch at Newark, New Jersey, though the published facts in that case seem to indicate spiritualistic fortune telling rather than witchcraft. The world moves, slowly it is true, but it does move, for at least we have no reason to expect a recurrence of Salem or of the Long Parliament. And yet, yielding momentarily to the fascination of speculation about the unknown, suppose there is "something in it." Has our modern philosophy succeeded in dreaming all the things in heaven and earth? Hypnotism and thought transference are accepted scientific facts. The "malicious animal magnetism" of the Christian Scientist has a large and respectable following. If this prying generation of ours should bring to light a subtle force by which one may work his maleficent will on his fellows, what is the law going to do about it? Law has adjusted itself to airships, it is struggling to encompass submarines, but we fear its abject breakdown if a black magician comes within its horizon.

Judicial Investigation of Legislature.

A

N

interesting decision has just been rendered in Massachusetts, holding to be unconstitutional a recent statute providing that on the petition of five voters alleging corrupt practices in the election of a member of the legislature, three judges shall make an investigation and file their report with the secretary of state. Chief Justice Rugg, who wrote the opinion, says, in part: "The power to pass upon the election and qualification of its own members is vested exclusively in each branch of the General Court. No other department of the government has any authority to adjudicate upon that subject. The grant of power is comprehensive, full and complete. It is necessarily exclusive, for the constitution contains no words permitting either branch of the legislature to delegate or share that power. It must remain where the sovereign authority of the state has placed it."

Soldiers' Wills.

A LA NOTES, it may be of interest to note that accords supplementary to a recent article on this subject in ing to recently published dispatches from Germany the question is now giving the civil courts there considerable difficulty. As was said in the article referred to, the Gerfrom the civil law, and exhibit a like tendency to effectuate man rules as to soldiers' wills, like the English, are derived the bequest if possible. A soldier wrote from the trenches of France to his fiancée that if he should fall he wanted her to have half of his property. He sent a second letter to her parents which he signed "Your son Fritz." The first was signed "Your true Fritz." By accident rather than by design he wrote out in one of the letters his full name and address to indicate how letters to him should be made out. The court held that this accidental insertion of the full name legally established the identity of the testator, as his signatures did not, and therefore upheld the validity of the letter-will.

A similar case went the other way because the letter was signed only by a Christian name. signed only by a Christian name. A mother sued in behalf of her daughter for half of a fallen soldier's estate, on the basis of a letter signed only "Heinrich" and not dated. Though there seemed to be no moral doubt of Heinrich's intentions, the court ruled against his fiancée.

NATURALIZATION AND ETHNOLOGY.

A SEA SERPENT of science, "made in Germany," was swallowed by the federal courts some forty years ago, since when, to the present time, we have witnessed most distressing symptoms of judicial indigestion accompanied with loud and frequent calls for Congressional dietetic treatment. This cetacean monster is the so-called "Caucasian race," a scientific chimera, as mythical as the peoples of Utopia or the race of the fabled Atlantis.

As usual, a woman in the case! Not since Helen of Troy or Eve herself has a woman wrought more confusion than the fair Mongolian (probably) whose skull beguiled a German savant to the bewilderment of the scientific world and the later confusion of the American federal courts in their interpretation of the naturalization laws. At the present time the question as to what class of aliens

statute.

an Asiatic Syrian. But in the case of In re Halladjian, 174 Fed. 834, Judge Lowell, in a commendably broad construction of the statute, said that the race was not an easy working test of white color as required by the In his opinion, which seems to the writer to be the most enlightened that has yet appeared on this perplexing subject, Judge Lowell finds that there is no such thing as a European or "white" race and that the word white has been used in its most comprehensive sense to include all persons not otherwise classified. The court said: "It appears that the word 'white' has been used in colonial practice, in the federal statutes, and in the publications of the government to designate persons not otherwise classified. The census of 1900 makes this clear by its express mention of Africans, Indians, Chinese, and Japanese, leaving whites as a catch-all word to include everybody else. A similar use appears 130 years earlier from the provincial census of Massachusetts taken in 1768, where 'French neutrals' are not reckoned as white persons, notwithstanding their white complexion. Negroes have never been reckoned as whites; Indians but seldom. At one time Chinese and Japanese were deemed to be white, but are not usually so reckoned to-day. In passing the act of 1790 Congress did not concern itself particularly with Armenians, Turks, Hindus, or Chinese. Very few of them were in the country, or were coming to it, yet the census taken in that year shows that everybody but a negro or an Indian was classed as a white person. This was the practice of the federal courts. While an exhaustive search of the voluminous records of this court, sitting as a court of naturalization, has been impossible, yet some early instances have been found where not only western Asiatics, but even Chinese, were admitted to naturalization. After the majority of Americans had come to believe that great differences separated the Chinese, and later the Japanese, from other immigrants, these persons were no longer classified as white; but while the scope of its inclusion has thus been somewhat reduced, 'white' is still the catch-all word which includes all persons not otherwise classified." And again-"We find, then, that there is no European or white race, as the United States contends, and no Asiatic or yellow race which includes substantially all the people of Asia; that the mixture of races in western Asia for the last twenty-five centuries raises doubt if its individual inhabitants can be classified by race; that, if the ordinary classification is nevertheless followed, Armenians have always been reckoned as Caucasians and white persons; that the outlook of their civilization has been toward Europe. We find, further, that the word 'white' has generally been used in the federal and in the state statutes, in the publications of the United States, and in its classification of its inhabitants, to include all persons not otherwise classified; that Armenians, as well as Syrians and Turks, have been freely naturalized in this court until now, although the statutes in this respect have stood substantially unchanged since the First Congress; that the word 'white,' as used in the statutes, publications, and classification above referred to, though its meaning has been narrowed so as to exclude Chinese and Japanese in some instances, yet still includes Armenians. Congress may amend the statutes in this respect. To provide more specifically what persons may be admitted to citizenship seems desirable. While statutes are unchanged, without proof, if proof be admissible, that the meaning of the word

'white' has been still further narrowed, this court will not deny citizenship by reason of their color to aliens who, like the Armenians, have hitherto been granted it." The applicant before the court was an Armenian from Asiatic Turkey, but the inference would seem to be inevitable that Judge Lowell would have extended the aegis of citizenship to any Asiatic not specifically excluded by the statute.

Again, in the case of In re Mudarri, 176 Fed. 465, in admitting an Asiatic Syrian, holding that "color" was not a criterion of "white," the court said: "Hardly any one classifies any human race as white, and none can be applied under section 2169 without making distinctions which Congress certainly did not intend to draw; e.g., a distinction between the inhabitants of different parts of France. Thus classification by ethnological race is almost or quite impossible. On the other hand, to give the phrase 'white person' the meaning which it bore when the first naturalization act was passed, viz., any person not otherwise designated or classified, is to make naturalization depend upon the varying and conflicting classification of persons in the usage of successive generations and of different parts of a large country. The court greatly hopes that an amendment of the statutes will make quite clear the meaning of the word 'white' in section 2169." And in a later case, In re Dow, 213 Fed. 355, the court discussing the same question said: "At first reading the term 'white' denotes color. Construed literally the statute might be interpreted to mean such a person as under the ocular inspection of the court seemed to be white in color. What standard of 'white' is the judge to adopt? The clear white of a Scandinavian, or the swarthy olive or brown of a person from the south of Portugal? Disease and other causes sometimes cloud and darken the fairest skin and lighten the darkest. It is manifest that it would be absolutely impossible for a judge to determine whether an applicant is a white person by ocular inspection. Again, out of the multitude of judges in this country, how could there be any uniform rule under such a test? No two judges would agree upon the same standard of grade or colorization."

Reverting to the earlier cases, the scene shifts, and the question takes on a new interest in United States v. Balsara, 180 Fed. 694 affirming 171 Fed. 294, wherein the applicant was a native of India. He was admitted, with grave doubt, by judicial metamorphosis, not as a Hindu but as a Parsee whose ancestors came from Persia many centuries before, and he was therefore a member of the enlightened Aryan race, a seemingly new criterion injected into this vexed subject, which if imposed must admit Afghans, low-caste Hindus, Arabs and Berbers, and forever exclude the Japanese, Chinese, Magyars and other benighted dwellers beyond the Ultima Thule.

So also, on this new Aryan theory, we find that a Hindu may be naturalized provided he is high caste and a Brahmin, and will testify that he always considered himself a member of the Aryan race. In re Akhay Kumar Mozumdar, 207 Fed. 115, wherein the court said: "The courts must administer the law as best they can until Congress sees fit to prescribe a more definite rule for their guidance."

We have seen that an Asiatic Syrian has been held to be a white person within the meaning of the statute, but in the case of In re Ex parte Dow, 211 Fed. 486, affirmed on rehearing in 213 Fed. 355, Judge Smith, in an ex

haustive opinion, concluded that a Syrian is not a white person within the statute. However, in Ex parte Dow, 226 Fed. 145, all of Judge Smith's unsurpassed learning on the question was swept aside, and the court, in reversal, held that the term "white persons" as used in the Naturalization Act of 1790, as amended by the act of 1875, includes a Syrian.

The City Court of Albany refused to naturalize a Burmese (In re Po, 7 N. Y. Misc. 471), and the Supreme Court of Utah refused naturalization to a Hawaiian (In re Kanaka Nian, 6 Utah 259) in each case on the ground that the applicant was not a Caucasian, while in the case of In re Rodriguez, 81 Fed. 337, a Mexican of aboriginal, that is, of direct Indian descent, was naturalized.

This rapid survey of the cases reveals the hopelessly chaotic condition of our naturalization laws as interpreted and applied.

In many cases, In re Mudarri, 176 Fed. 465; In re Balsara, 171 Fed. 294, 180 Fed. 694; In re Ellis, 179 Fed. 1002; In re Mozumdar, 207 Fed. 115, among others, the court recommended an amendment changing the wording of section 2169 so that the intent of Congress will be made to appear.

This suggests two questions: first, whether an amendment is necessary and if so, second, what should such amendment comprise. Assuming for the present purpose that section 2169 is still in force the proposition presents itself, what did Congress mean and intend by the words "white persons" in the act of 1790?

It is a canon of statutory construction that a legislative act is to be construed according to the intention of the legislature at the time of its enactment and this should be derived from the words of the statute and not from conjecture aliunde. But when there is doubt there are interpretative aids which may properly be considered, among which are the debates preceding the enactment, and the history and conditions at the time.

The debates on the naturalization bill of 1790 so far as they are reported in the House Journal and the Annals of Congress throw no light on the so-called ethnological problem involved. The discussions centered on the constitutional rights involved in citizenship such as the ownership of land and tenure of office. But one phase of the subject loomed large and that was the question of immigration. This was to be encouraged and the problem was "to so adjust the naturalization law as to reap the maximum advantage from immigration." It will be well to carry this thought in mind.

What were the conditions of the times so far as immigration was concerned? When the act was passed no immigration was known except from Great Britain and Ireland, Scandanavia, Holland, Germany and France. It has been argued from this that it was the intention of Congress to restrict naturalization to these classes. Indeed, in the case of United States v. Balsara, 180 Fed. 694, the court went so far as to say, "In the original naturalization act the expression free 'white persons' was doubtless intended to include the white emigrants from Northern Europe with whom Congress was that day familiar and to exclude Indians and persons of African descent and nativity." If such was the intention of Congress it has long since been defeated by the naturalization of the Russians, the Poles and the multitudes from southern Europe. In reply to this it might be contended that Congress in

tended to include the Europeans as a whole and this indeed was the position taken by Judge Smith in the case of In re Dow, 213 Fed. 355, but this in turn is confuted by the early naturalization of the Hebrew, an Asiatic, against whom the fathers themselves raised no objection. Moreover as Judge Lowell showed in the opinion above referred to, there is no European race. Clearly then no racial or ethnological principles can be deduced from the debates in Congress or from the practice of the times.

May not something of the Congressional intent be learned from subsequent naturalization acts? The acts of 1795 and 1802, like the original act, limited the privilege to free white persons. In 1870 the law was amended so as to include aliens of African nationality and descent. This was the political answer to the Dred Scott case. But in 1873 the words "free white persons" were omitted, only to be restored in the amendment of 1875. In the interim between 1873 and 1875 any alien was eligible to naturalization. In re Al Chung, 2 Fed. 733. Now if in 1875 Congress intended to limit the privilege to Europeans and Africans, and to exclude Asiatics, why did it not insert a more definite expression than "free white persons" in the statute of 1875? Consider in this connection section 14 of chapter 126 of the Act of May 6, 1882, whereby the ineligibility of Chinese was expressly provided for, as follows: "That hereafter no state court or court of the United States shall admit Chinese to citizenship and all laws in conflict with this act are repealed." If the words "white persons" in the amendment of 1875 excluded Chinese, what was the reason for the Act of 1882? Is it not a logical conclusion that the words "white persons" in the amendment of 1875 included all aliens not otherwise classified? And if this be stubbornly resisted-though on what grounds we cannot conjecture-may it not be fairly mooted whether section 2169 of the Revised Statutes was not modified by the act of 1882? These are questions which as yet seem not to have been presented to the federal courts.

Singularly, the Act of June 29, 1906, 34 Stat. L. 596, the latest expression of Congress on the subject (excepting the Amendment of 1910 not pertinent to this discussion) has received scant attention from the courts on this question. That act provides a uniform rule for the naturalization of aliens throughout the United States. Section four provides that "an alien may be admitted to become a citizen of the United States in the following manner and not otherwise." Nothing is said here of an alien being a free "white person." What is the effect of this act on section 2169 which limits the application of the whole title to free white persons? Is not the latter section repugnant to or at least inconsistent with the act of 1906? It would seem that so far as the Acts of Congress are concerned the only deduction that reasonably can be made is that the words "white persons" have no ethnic significance, imply no classification, but include all persons not otherwise classified, that is to say, all other than Africans. This is the sense in which the words have been employed in state statutes. Several of the states have enacted statutes requiring separate transportation and school accommodation for the white and African peoples. Two citations will sufficiently illustrate the point. Section 11, article 23 of the Constitution and laws of Oklahoma reads: "Whenever in this Constitution and laws of this state the words 'colored,' 'colored person,' 'negro' or 'negro race'