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the Japanese Association of America and the central Japanese Association and their subsidiaries and kindred organizations are in fact, agents of the Japanese Government.39 While one of the documents quoted above intimates that these Japanese organizations have interfered in the domestic political situation, it is appropriate at this point to offer evidence of the degree of infringement upon international comity, their activities have attained. For example:
[Sacramento Bee, January 22, 1920]
Japanese Seek to "Persuade" Next Legislature-Charges to this Effect are Made by Leading Japanese Newspapers Following Picture Bride Friction. Charges that the Japanese already have started a movement to "negotiate " for legislation in the 1921 legislature that will be beneficial to their own interests are made in an editorial appearing in the Nichi-Bei, Japanese American News, the leading Japanese newspaper of San Francisco.
The paper states the plan is to raise a fund of $100,000 with which to conduct "negotiations" with the legislature, and that $50,000 is to be secured in "certain quarters in the old country, conditioned on the collection of a like sum from Japanese residents in America.
[Sacramento Daily News, June 18, 1920]
Japanese Raising Secret Emergency Fund-Officials of Japanese Association of America Touring the State to Fight the Initiative.
The Japanese Association of America has been busy for several weeks sending out its secretaries and officials to hold conferences with local secretaries and directors concerning what is called the " emergency movement." By the emergency " is meant the proposed initiative law which is regarded as a menace to Japanese expansion. The “ emergency movement is an effort. to defeat the initiative.
For this purpose funds are being collected, but the plan for expending the money is a "secret". And this effort to raise money for some sort of leaping in the dark" has let the cat out of the bag ***
Meanwhile the canvass for funds goes on, with success indicated by published reports from different sections of the State.
A Watsonville item in the New World, after stating that "the Watsonville Japanese Association is now in the midst of raising funds for the emergency and our people will understand its purpose and are contributing liberally", adds this naive remark:
"Of course, this sort of movement is not altogether approved by us as individuals, but as the unanimous decision of the delegates of the cooperating association, the Watsonville Association accepts the plan, etc."
In many of these local reports there is a tone of doubt as to the expediency of this secret drive for funds by the Japanese Association of America.40
It would thus appear, as already indicated, that there is substantial basis for the contention that the Japanese Association of America and kindred bodies have not only exercised a measure of supervision and control over Japanese nationals domiciled in the United States in behalf of their Government, but also these organizations seem to have gone so far as to seriously intervene in the domestic political situation in the State of California. Now, while the law of nations does not prevent a state from exercising jurisdiction over its subjects traveling or residing abroad," this super
39 Cf. testimony of Mr. T. Karakawa, secretary of the Japanese Association of the Sacramento Valley, hearings before the Committee on Immigration and Naturalization, House of Representatives, Sixty-sixth Congress, page 279. 40 Hearings before the Committee on Immigration and Naturalization, House of Representatives, Sixty-sixth Congress, pages 394 and 395.
4 Cf. Oppenheim's International Law, page 202; also, Case of Apollon 9 Wheat. 362, Digest of International Law, Moore, Vol. II, page 213.
vision and control are strictly limited to the voluntary acquiescence of the aliens domiciled within foreign territory, because
The jurisdiction of the nation within its own territory is necessarily exclusive and absolute. It is susceptible of no limitation not imposed by itself. Any restriction upon it, deriving validity from an external source, would imply a diminution of its sovereignty to the extent of the restriction, and an investment of that sovereignty to the same extent in that power which could impose such restriction. All exceptions, therefore, to the full and complete power of a nation within its own territories, must be traced up to the consent of the nation itself.42
But, if the nationals of a foreign state intervene in the domestic affairs of a foreign government within whose jurisdiction they are domiciled, the allocation and degree of responsibility for acts infringing upon its sovereignty must be determined by their relation to the state to which they owe allegiance. Obviously a state under international law is not only directly responsible for acts committed by its agents acting in accordance with instructions, but also must assume a measure of responsibility for unauthorized injurious acts of its agents and its subjects. The instructions given by Mr. Buchanan, while Secretary of State to Mr. Shields, so clearly indicates the policy of the United States respecting interferences by officials of our Government in domestic affairs of a foreign nation, that it may be well to quote it:
The plain duty of the diplomatic agents of the United States is scrupulously to abstain from interfering in the domestic politics of the countries where they reside. This duty is specially incumbent on those who are accredited to governments mutable in form and in the persons by whom they are administered. By taking an open part in the domestic affairs of such a foreign country they must, sooner or later, render themselves obnoxious to the executive authority, which can not fail to impair their usefulness."
The following quotation from the instructions given by Mr. Sherman, when Secretary of State, to Mr. Sill, Minister to Corea, is equally explicit respecting the activities of private individuals domiciled in foreign territory:
March 30, 1897, the American minister at Seoul was directed to communicate by a circular to each and every citizen of the United States whom he might know or ascertain to be sojourning in Corea, "the repeatedly expressed view of the Government of the United States that it behooves loyal citizens of the United States in any foreign country whatsoever, to observe the same scrupulous abstention from participating in the domestic concerns thereof, which is internationally incumbent upon his Government. They should strictly refrain from any expression of opinion or from giving advice concerning the internal management of the country, or from any intermeddling in its political questions."
Under these circumstances, and in view of the activities of Japanese subjects heretofore related, a peculiarly difficult situation has arisen in the United States through the fact that Japan claims the allegiance of all persons of Japanese parentage born within our jurisdiction. These persons are, of course, under the Fourteenth Amendment of our Constitution, citizens of the United States.46
42 Marshall, C. J. Schooner Exchange v. McFaddon (1812), 7 Cranch, 116, 136. Digest of International Law, Moore, Vol. II, page 4.
43 Cf. International Law, Oppenheim, Vol. I, page 208.
Digest of International Law, Moore, vol. 4, page 573.
45 Digest of International Law, Moore, vol. 4, page 15.
46 Cf. "All persons born in the United States and not subject to any foreign power, excluding Indians not taxed, are declared to be citizens of the United States." (R. S. sec. 1992; act April 9, 1866, c. 31 Sec. I, 14 Stat. 27; Barnes Federal Code, p. 764.)
Our relations are further complicated through the fact that until the passage by the Japanese Diet on July 8th, 1924, that is to say, about two months after Congress had enacted into law the provisions to which the Japanese Government takes exception, it was practically impossible for a child born of Japanese parents domiciled in the United States to expatriate, a fact conclusively established by Article 20 Bis. and Articles 23 and 24, of the Japanese Nationality Law, as amended in 1916, which read thus:
ART. 20 Bis. In case a Japanese subject who has acquired foreign nationality by reason of his or her birth in a foreign country has domicile in that country, he or she may be expatriated with the permission of the minister of state for home affairs.
The application for the permission referred to in the preceding paragraph shall be made by the legal representative in case the person to be expatriated is younger than 15 years of age. If the person in question is a minor above 15 years of age, or a person adjudged incompetent, the application can only be made with the consent of his or her legal representative or guardian.
A stepfather, a stepmother, a legal mother, or a guardian may not make the application or give the consent prescribed in the preceding paragraph without the consent of the family council.
A person who has been expatriated loses Japanese nationality.
ART. 23. A Japanese child who, through legal procedure, has acquired a foreign nationality, loses Japanese nationality.
ART. 24. A male above the full age of 17 or more does not lose Japanese nationality under the provisions of the preceding six articles, until he shall have served in the army, navy, or otherwise he has no obligation thereto.**
Referring to this policy, a witness before the Committee on Immigration of the United States Senate, testified that out of 90,000 Japanese born upon American soil, only 64 had availed themselves of the privilege of expatriation accorded to them under the laws of Japan," and so far as can be ascertained, the total number of expatriations recorded to date under the provisions of the Act, probably do not exceed two thousand. It is not surprising, therefore, to find evidence of the fact that Japanese born in this country and under our laws, American citizens, have been compelled to apply to the Japanese Consul as Japanese subjects for the purpose of importing a wife
47 This law was not in effect by September 1, 1924, and so far as the writer can ascertain, it has not yet been put into effect. It may perhaps be well to point out that Japanese procedure in respect to promulgation and putting into effect legislation is vague. For example: The Japanese Year Book of 1923, page 48, referring to the right of ownership of land which was formerly denied to individual foreigners, states that by a law promulgated in 1910, the situation has undergone a change, yet at the conclusion of a digest of the provisions of this law, adds that the date of putting the law into operation still remains unfixed.
48 Hearings before the Committee on Immigration and Naturalization, House of Representatives, Sixty-sixth Congress, page 711. Cf. Appendix C (1) Translation of nationality law of Japan promulgated April 1, 1899; (2) Translation derived from American sources of the amendment passed by the Japanese in 1924; (3) Translation of the same amendment, understood to have been issued by the Japanese foreign office. The reader will observe a curious discrepancy in the two translations of the amendment adopted by the Diet in the summer of 1924, inasmuch as the American translation does not embody the note appended to the translation alleged to have been issued by the Japanese foreign office. Up to the moment of going to press, the writer has been unable to ascertain the reason for the omission in the American translation of any reference to so important a qualification as appears in the note appended to the Japanese translation. In any event, as indicated elsewhere, the amendment does not seem to have as yet been put in force.-Author.
49 Hearings before the Committee on Immigration, United States Senate, Sixty-eighth Congress on S 2576 page 7.
under the terms of the Gentlemen's Agreement,50 or that American citizens of Japanese parentage should have been summoned for military duty by the Government of Japan."1
This attitude on the part of Japan raises the question of dual allegiance from an issue which has been in abeyance for many years. to one of the first importance to all immigrant receiving nations in the western hemisphere or elsewhere.52 It may be, therefore, well before turning to another phase of the problem which we have under discussion, to briefly review the law of expatriation.
While it is true that at common law,5 it was held to be a universal principle that a natural born subject could not by any act of his own discharge his natural allegiance, and American practice was for a period during our history somewhat confused, nevertheless, the policy of the United States became definitely fixed through the adoption of Section 1999 of the Revised Statutes, which proclaimed that the right of expatriation is a natural and inherent right of all people, indispensable to the enjoyment of the rights of life, liberty, and the pursuit of happiness. This section of the statute concludes. with a statement to the effect that any declaration, instruction, opinion, order or decision of any officer of the United States which denies, restricts, impairs or questions the right of expatriation, is declared to be inconsistent with the fundamental principles of the Republic.54
50 Japanese from Camp Schofield, Hawaii, sworn in as American soldiers and wearing the khaki of Uncle Sam, applied, as Japanese citizens to the Japanese Consul at Honolulu and secured the consular certificate entitling them to bring over picture brides from Japan. The ultimate object was to aid in increasing the Japanese population of Hawaii and thereby hasten the time when Japan would control Hawaii by force of numbers." (Joseph Timmons, Exhibit XV, section 201, Japanese immigration and colonization, brief prepared for consideration of the State Department, by V. S. McClatchy, October 1, 1921, p. 66.)
51 Mr. MCCLATCHY. * * * Japan claims and insists on every individual Japanese (whether he be born in Japan and an immigrant here or born in the United States and accorded all the rights of American citizenship] discharging all the duties and obligations of Japanese citizenship, and vicariously punishes his relatives in Japan if he fails to do it. I will just read one extract in support of that last statement. The Honolulu Advertiser of January 16, 1923, contained a very striking item in regard to the case of Henry K. Fukuda, member of the Society of American Citizens of Japanese Ancestry, born in Hawaii, a citizen of the United States, claiming and exercising all the rights and duties of American citizenship.
"It seems that Fukuda, as all other Japanese born in this country and claiming American citizenship, was cited to show himself in Japan and perform his military duty, and he failed to do so. He had certain relatives over there, and those relatives were punished because Mr. Fukuda, an American citizen, declined to go back to Japan and perform his conscription duties. He has a receipt showing that H. Nakahara, who was his relative, had paid $5 to the district attorney of the Iwakuni district for alleged violation of the military conscription law by H. Fukuda.
"Senator KING. They insist upon dual citizenship, the same as Germany did for awhile?
"Mr. MCCLATCHY. They do, Senator, but they carry it to a very much greater extent. Germany does not in this country maintain associations under which every American citizen of German parentage is influenced and controlled; those associations subject to major associations, and those in turn subject to the control and direction of the local German consul. That is the fact with regard to Japan and the Japanese, and here I have in my exhibits the proof of it." (Hearings before the Committee on Immigration, United States Senate, 68th Cong., 1st sess., on S. 2576, pp. 6 and 7.) 52 The institute of international law, having taken up the question of conflicts of nationality during its session in 1895 at Cambridge, adopted the following principles: 1. No one should be without nationality.
2. No one can have simultaneously two nationalities.
3. Everyone should have the right to change nationality.
4. A renunciation pure and simple does not suffice to establish loss of nationality. 5. Nationality by origin should not be transmitted to infinity from generation to generation established abroad.
Cf. LeDroit International, Charles Calvo, Vol. IV, fifth edition, section 93, page 117. 53 Cf. Blackstone Comity, Vol 1, p. 369; F. E. Smith's International Law, Vol. 4, p. 82. 54 Act of July 27, 1868, c. 249, Sec. I, 15 Stat. 223; Barnes Federal Code, p. 766.
In the case of children born abroad of American parents, who are citizens of the United States in accordance with the provisions of Section 1993 of the Revised Statutes, 55 the law provides that if continuing to reside outside the American jurisdiction, they shall in order to receive the protection of this Government, be required upon reaching the age of 18 years, to record at an American consulate, their intention to become residents and remain citizens of the United States, and they shall further be required to take the oath of allegiance to the United States upon attaining their majority.56
It will be observed that the provisions of the statute requiring the registration of the children of American parentage residing abroad, in no way, impairs their right of expatriation, but is merely a condition precedent to establishing a claim for the protection of our government while living under foreign jurisdiction, therefore, there is no ground for the contention sometimes made that the Japanese and American practice upon this question is identical.
Now, while the amendments to the Nationality Law of Japan give the impression that it is the intention of that government to change its policy respecting the expatriation of its citizens, it is impossible to discuss the act as it now stands with precision, in view of the fact that its action is dependent upon the passage of supplementary ordinances which so far as can be ascertained, have not yet been formulated. For example: While there is an apparent similarity in the first clause of Section XX-2 of the Nationality Law of Japan as now amended, to the provisions of our law relating to children born in foreign territory, we cannot assume that similarity as a fact until the list of designated states referred to therein is published, and it shall appear that the United States is one of the states to which its provisions will apply. If the United States is designated by imperial ordinance to be subject to the provisions of Section XX-2, then any child born after such designation of Japanese parents domiciled in the United States may, if he so desires, declare his intention to retain his allegiance to Japan. If he does not declare his intention, his American nationality is to be presumed, but it cannot be said now, when or how this declaration of the child's intention may be made. Obviously, this may be a vital point in determining the effect of the amendment. On the other hand, it appears that in the case of a child born on American soil prior to the designation of the United States-assuming it to be designatedthe child may relinquish his Japanese nationality at will, provided he retains an American nationality and an American domicile; in other words, all children of Japanese parents heretofore born within
55" All children heretofore born or hereafter born out of the limits and jurisdiction of the United States, whose fathers were or may be at the time of their birth citizens thereof, are declared to be citizens of the United States; but the rights of citizenship shall not descend to children whose fathers never resided in the United States." (Acts, April 14, 1802, c. 28, sec. 4, 2 Stat. 155; Feb. 10, 1855, c. 71, sec. 1, 10 Stat. 604; Barnes Federal Code, p. 764.)
56 "All children born outside the limits of the United States who are citizens thereof in accordance with the provisions of section nineteen hundred and ninety three of the Revised Statutes of the United States and who continue to reside outside the United States shall, in order to receive the protection of this Government, be required upon reaching the age of eighteen years to record at an American consulate their intention to become residents and remain citizens of the United States and shall be further required to take the oath of allegiance to the United States upon attaining their majority." (Act of March 2, 1907, c. 2534, secs. 5-7, 34 Stat. 1229; Barnes Federal Code, p. 764.)