the United States are still so far as we can judge from the wording of the amended sections Japanese subjects until they see fit to expatriate, but bear in mind, that this privilege of expatriation is contingent on a retention of American nationality, and an American domicile. Just what the nationality of such a child, an American citizen, under the Constitution of the United States, would be from the standpoint of Japanese Law in the event of a change of domicile, is not by any means clear. Should, however, the United States fall within the category of states not designated by imperial ordinances, Section XX-3 provides that a Japanese born upon our soil and an American citizen under our constitution and laws, can only expatriate with the permission of the Minister of Home Affairs, but in any case, attention must be particularly drawn to the provision that a recognition of expatriation both under Sections XX-2 and XX-3, is attendant not merely upon the assumption of a foreign nationality, but upon the retention of that domicile, because under Section 26 of the Nationality Law of Japan, a Japanese by origin as distinguished from a Japanese by naturalization, can repatriate, if domiciled in Japan, merely upon permission from the Minister of Home Affairs.57 In the event that a Japanese born and domiciled abroad declares his intention of retaining Japanese nationality after the designation of states, or does not avail himself of the privilege of expatriation, if born prior to the designation of states, as specified under Section XX-2, as amended, his descendants indefinitely continue to be regarded as Japanese under the laws of Japan, where the Jus Sanguinis prevails.

58

In any case, however the ordinances may be drawn, we may safely assert since they cannot alter the fundamental principles of Sections XX-2 and XX-3, that the question of dual allegiance will still be with us. Should the amendments be put into effect, conditions unquestionably will be modified, possibly somewhat ameliorated, but even so, there remains a deplorable conflict of principle and policy, which must continue to breed discord and uncertainty between the nations and peoples of the world, for it must be understood that while this discussion of dual allegiance and the right of expatriation has been confined to Japan and the United States, the problem is worldwide. There is no uniformity of law, and there is a great divergence of interests, therefore, it behooves those states whose resources and relative sparsity of population render them peculiarly susceptible to conquest by pacific penetration, to devise means in concert to avert a peril which looms upon the horizon in the East,

as well as in the West.59

57 Cf. DeBecker's International Private Law of Japan, 1919, page 23.

58 Cf. DeBecker's International Private Law of Japan, 1919, page 26; also Section I, Nationality Law of Japan, 1899, Appendix C of this paper.

59 Declaration by Mussolini respecting the effect of the United States immigration act of 1924 upon the economic and political situation today, which reads as follows:

66

Italy, poor in raw materials, has been hit hard by the American immigration quota law. We must have an outlet, and our main aim must be to provide raw materials: otherwise peace will be peace under constraint, and in 1925 we would have decay." (New York Times, November 17, 1924.)

Also note developments in Brazil, where, according to the Japanese Year Book, 1923, 37,000 Japanese are cultivating rice and coffee, mostly in the State of Sao Paulo; also, note the development of colonies in Peru, Bolivia, and elsewhere, page 46, Japanese Year Book for 1923.

IV. DOCTRINE OF RACE EQUALITY

We have seen as the facts relating to Japanese immigration have been reviewed, that the scope of the problem is very broad. It involves not merely questions relating to the assimilability of the races, or the good faith demonstrated by Japanese officials in the performance of obligations assumed by their government, but also the penetration of an alien people maintaining such close affiliation and relation to the land of their origin as to amount to an actual encroachment upon the sovereignty of the United States. The extent of his encroachment has been evidenced by the fact brought out in the preceding section that the government of Japan claims the allegiance of persons born under our flag of Japanese blood who are citizens of the United States, but we now reach the crux of the whole problem in a discussion of the doctrine of race equality.

Few people who have not studied deeply the basic causes of the deplorable controversy which has arisen with Japan, appreciate the difficulties with which Congress was faced in the preparation of a clause in the Immigration Act of 1924, which would inhibit an influx of Orientals at our ports, not offend the susceptibilities of a friendly nation, and also, above all things, protect the sovereignty of the United States.

duced by wt has been said that no valid reason has been ad

duced by which the committees on immigration of Congress can justify the omission of Japan from the provisions of the Quota Law, since on the basis of the census of 1890, it is estimated that the total immigration permissible would amount to 146. The proponents of this point of view are apparently oblivious of the fact, that aside from other considerations which made such a course impossible, there could be no guarantee that once the bills in the Senate and in the House came on the floor of Congress, that the Census of 1890 would be adopted, and if it were not adopted, but had a later date been inserted in its place, we would then have been confronted with a Japanese immigration of sufficient magnitude to materially aggravate the political and social conditions in our insular possessions and on the Pacific coast of continental United States. As a question of practical politics from this point of view, it should be obvious for anyone familiar with the procedure of Congress to recognize the impracticability of putting Japan under the quota, but aside from this circumstance, it is inconceivable that all other circumstances being put aside, the committees of Congress could advocate the adoption of a policy permitting the entry of an alien people to settle upon our lands, who are ineligible for citizenship, under the laws of the United States.

Now, while it is true that in its correspondence with our Government, Japan has recognized that "fundamentally speaking, it lies within the inherent sovereign power of each state to limit and control its immigration to its own domains," 60 it in fact challenges this privilege because the necessities of the situation involve the adoption of the principle of eligibility for citizenship, as a prerequisite to enter the territory of the United States for the purpose of settlement. In this connection, the reader must bear in mind that regardless of

60 Note of Mr. Hanihara to Mr. Hughes, May 31, 1924. See Appendix A of this paper.

the basis upon which any nation presumes to exclude subjects of the Japanese Empire from their territories, the government of Japan regards that circumstance as an unfriendly act, for example: At the time that the annexation of the Hawaiian Islands was under contemplation by the United States, although the territorial government had declared in its constitution, an intențion to secure eventual union with this country, the Japanese Government, aware of the facts and with full knowledge of the policy of our government as to these matters, continued to encourage the emigration of its subjects to those islands, and took the stand that a maintenance of the status quo, that is to say, the independence of Hawaii was essential to a good understanding between the powers which have interests in the Pacific. In other words, although the Japanese Ambassador, Mr. Hanihara, protested on behalf of his government that "the mere fact that a few hundred thousand of her nationals will or will not be admitted into the domains of other countries is immaterial so long as no question of national susceptibility is involved", we have proof of a disposition to threaten our government nearly a generation and a half before he wrote on behalf of his Government, that the incorporation of the exclusion provision in the Immigration Act of 1924, would be attended by "grave consequences". As a matter of fact, it is demonstrable that while the usual connotation of the term "grave consequences" in diplomatic correspondence was subse"in quently disavowed,62 there can be no question but what the record of the past thirty years, is replete with evidence of an aggressive policy, for example: In a letter written to Sir George O. Trevelyan, Mr. Roosevelt, referring to the Japanese question, said:

I had been doing my best to be polite to the Japanese, and had finally become uncomfortably conscious of a very, very slight undertone of veiled truculence in their communications in connection with things that happened on the Pacific slope; and I finally made up my mind that they thought I was afraid of them I found that the Japanese war party firmly believed that they could beat us, and, unlike the Elder Statesmen, thought I also believed this."

* *

*

In 1913, Viscount Chinda protested on behalf of the Japanese Government against the California Land Laws, on the grounds that "the enactment is at variance with the accepted principles of just and equal treatment upon which good relations between friendly nations must, in the final analysis, so largely depend," and later "during

61 Cf. Mr. Sherman, Secretary of State to Mr. Torn Hoshi, Japanese Ambassador, August 14, 1897, MS. Notes to Jap. Leg. I, 533, Digest of International Law, Moore, pages 505-507.

62 See Appendix A of this paper.

63 The McKinley and Roosevelt Administrations 1897-1909, by John Ford Rhodes, page 372. 64 Foreign Relations of the United States, 1913, page 633. To the note embodying this statement, the Secretary of State replied in part as follows:

"I can not help feeling that in the representations submitted by Your Excellency the supposition of racial discrimination occupies a position of prominence which it does not deserve and which is not justified by the facts. I am quite prepared to admit that all differences between human beings-differences in opinion, differences in nationality, and differences in race may provoke a certain antagonism' but none of these differences is likely to produce serious results unless it becomes associated with an interest of a contentious nature, such as that of the struggle for existence. In this economic contest the division no doubt may often take place on racial lines, but it does so not because of racial antagonism but because of the circumstance that the traditions and habits of different races have developed or diminished competitive efficiency. The contest is economic; the racial difference is a mere mark or incident of the economic struggle.

"All nations recognize this fact, and it is for this reason that each nation is permitted to determine who shall and who shall not be permitted to settle in its dominions and become a part of the body politic, to the end that it may preserve internal peace

the winter of 1917, an alien land bill was brought up in Idaho. Again sharp and emphatic protest was made by the Japanese Government. It was reported in the press that the Japanese Ambassador had made it plain to our State Department that it would be difficult for the Japanese Government to keep its people in hand if such legislation was passed.'

99 65

In view of the circumstances which have been narrated, it is not astonishing, therefore, that during the Peace Conference at Versailles, an effort should have been made by the government of Japan to force into the Covenant of the League, a declaration respecting racial equality, which read as follows:

The equality of nations being a basic principle of the League of Nations, the High Contracting Parties agree to accord, as soon as possible, to all alien nationals of States, Members of the League, equal and just treatment in every respect, making no distinction, either in law or fact, on account of their race or nationality.

66

In support of this claim Baron Makino said:

It is not necessary to dwell on the fact that racial and religious animosities have constituted a fruitful source of warfare among different people throughout history, often leading to deplorable excesses.

*

*

*

can

As a result of this war, the wave of national and democratic spirit has extended to remote corners of the world, and has given additional impulse to the aspirations of all peoples; this impulse once set in motion not be stifled, and it would be imprudent to treat this symptom lightly.. Coincident with the efforts which were being made in Paris, to establish the doctrine of race equality, the Japanese Ambassador in a note placed in the President's hands, just before he sailed for Europe, the second time, said:

In view of the fundamental spirit of the League of Nations the Japanese Government regards as of first importance the establishment of the principle that the difference of race should in no case constitute a basis for discriminatory treatment under the law of any country. Should this great principle

and avoid the contentions which are so likely to disturb the harmony of international relations.

"That the Imperial Government of Japan accept and act upon these principles precise proof is not wanting. "By the Imperial Ordnance No. 352 of 1899, which is understood to be still in force, it is provided:

"ARTICLE 1. Foreigners, even those who either by virtue of treaty or custom have not freedom of residence, may hereafter reside, remove, carry on trade, and do other acts outside the former settlements and mixed residence districts: Provided, That in the case of laborers they can not reside or carry on their business outside the former settlements or mixed residential districts unless under the special permission of the administrative authorities.

"The classes of such laborers (referred to in the preceding paragraph) and details for the operation of this ordinance shall be determined by the Minister for Home Affairs.' "The department is advised that this ordinance was promulgated in order to prevent the immigration of Chinese laborers, who were attracted to Japan by the rise of wages which began in that country after the war with China and has continued ever since. As a result of this rise in wages conditions grew up not unlike those which have existed at certain places in the United States, the objection made in Japan to Chinese laborers being that they worked for lower wages than the natives. In the summer of 1907, as the department is advised, two groups of Chinese laborers were excluded from Japan under the application of the ordinance above mentioned, one of the excluded groups being composed of coolies, the other of skilled artisans such as mechanics. The department is not advised that the crdinance has been or is enforced as against laborers other than Chinese. The department is, however, far from imputing to the Imperial Government in its enforcement of the ordinance a design to make a racial discrimination. On the contrary, the department assumes that the question with which the Imperial Government were seeking to deal was in its essence economic, and racial only incidentally, and that this would continue to be the case even if the ordinance, although it was no doubt originally designed to exclude Chinese laborers, should be applied to laborers of another race." (Foreign Relations of the United States, 1913, note of July 16, 1913, pp. 641 and 642.)

65 The Immigration Problem, by Jenks and Lauck, page 352.

66" Woodrow Wilson and World Settlement," by Ray Stannard Baker, page 234.

fail of general recognition the Japanese Government do not see how a perpetual friction and discontent among nations and races could possibly be eliminated."T

When this question came up for final disposition, "Viscount Chinda, the Japanese delegate who always brought pressure to bear or made threats," according to Mr. Baker, "responded that 'Japanese public opinion was so strongly behind this amendment that he asked the Commission to put it to the vote. If the amendment were rejected, it would be an indication to Japan that the equality of members of the League was not recognized and as a consequence the new organization would be most unpopular. Public opinion in Japan was very much concerned over this question, and certain people have even gone so far as to say that Japan would not become a member of the League of Nations unless she were satisfied on this point." "This was, of course, as Mr. Baker said, a threat.

* * *

This record of intimations and even threats that friendly relations with Japan are dependent upon a recognition of delicately adjusted susceptibilities respecting national and racial equality, leading up to an interchange of communications between our respective governments during the past year to which allusion has already been made, must, if we are to form a sane judgment upon the action of Congress, be studied in connection with the practice of the principles professed by the government of that nation, and also in relation to the actual facts as to its attainment of the status of a world power.

A little over half a century ago the Government of Japan pressed for a recognition of complete national sovereignty and the abolition of the privilege of extra territoriality accorded to the European powers, but obviously it was impossible for civilized states to make this concession until a complete revision of the judicial system of Japan had been accomplished. In 1878, the United States concluded a treaty along the lines desired by Japan, but it contained a clause conditional on the acceptance of its principles by the European powers. This acceptance did not appear practicable until 1894, when a series of treaties were negotiated which eventually accorded to the government of Japan, full recognition of domestic sovereignty and equality among civilized nations of the world.69

A digression is perhaps appropriate at this point, to outline the political results coincident and immediately following the signature of those treaties. The ink was barely dry, when the government of Japan having laid the groundwork by preliminary steps in 1875, 1882 and 1884, for a definite policy of territorial expansion entered upon a military occupation of Korea, and without a declaration of war, attacked and defeated a detachment of the Chinese fleet, a battle which was followed by the sinking of the British steamer Kow-Shing, under circumstances which threatened to involve European complications. However, war being declared on August 1st, and followed by a brilliant campaign on land and sea, the Chinese Empire succumbed and sued for peace. Japan deprived of the fruits of her victories through a concert of the European powers naturally observed with feelings of deep resentment, the practical

67" Woodrow Wilson and World Settlement," by Ray Stannard Baker, page 236. 68" Woodrow Wilson and World Settlement," by Ray Stannard Baker, page 237. 69 Digest of International Law, Moore, vol. 4, pages 259-261.