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dismemberment of China by Russia, Germany, France and Great Britain, without any material gain other than a vast enhancement of her prestige, the islands of Formosa and Pescadores, together with some indemnity in money. The spirit of Japan at this time, may be gathered from some remarks made in the course of a speech delivered by Count Okuma, an ex-Minister for Foreign Affairs. Count Okuma said:

The European Powers are already showing symptoms of decay, and the next century will see their constitutions shattered and their empires in ruins. Even if this should not quite happen, their resources will have become exhausted in unsuccessful attempts at colonisation. Therefore who is fit to be their proper successors if not ourselves? What nation except Germany, France, Russia, Austria, and Italy can put 200,000 men into the field inside of a month? As to their finance, there is no country where the disposal of surplus revenue gives rise to so much political discussion. As to intellectual power, the Japanese mind is in every way equal to the European mind. More than this, have not the Japanese opened a way to the perfection of a discovery in which foreigners have not succeeded even after years of labour? Our people astonish even the French, who are the most skilful among artisans, by the cleverness of their work. It is true the Japanese are small of stature but the superiority of the body depends more on its constitution than on its size. If treaty revision were completed, and Japan completely victorious over China, we should become one of the chief Powers of the world, and no power could engage in any movement without first consulting us. Japan could then enter into competition with Europe as the representative of the Oriental races.

Within a decade, Japan having concluded a mutually advantageous agreement with Great Britain, which in a sense prevented a renewal of the concert of the powers which had thwarted her designs in 1894, served an ultimatum on the Russian Government and without delay or the formality of a declaration of war, sent her torpedo boats into Port Arthur, and virtually annihilated the Pacific Squadron of the Czar. Two detached vessels being surprised in the Harbor of Chemulpo, were likewise destroyed. Following a desperate struggle, Russia shaken by internal disorder, was compelled to acknowledge defeat, and the territories which she occupied and upon which Japan looked as her rightful prey and legitimate sphere for the expansion of her population, fell into her hands.71

Again a decade passed, then, according to Mr. Baker:

Within a few weeks after the Battle of the Marne, despite the efforts of Great Britain and the United States to dissuade her and keep the war out of China,

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70 The Peoples and Politics of the Far East, Henry Norman, page 392.

11 In a book entitled “ • Japanese Emigration to China,” by Ta Chen, appears a quotation from a document alleged to have been printed for private circulation, entitled “General Policies of Japan's Emigration” (p. 65), by Baron Shimpei Goto, which is an illuminating exposé of Japanese emigration policy respecting the mainland of Asia. Baron Goto is said to have been “ for many years civil governor of Taiwan and the most experienced colonial administrator of Japan." As the document affords much food for thought, assuming the baron to be correctly quoted, the following excerpt with an explanatory paragraph by Mr. Ta Chen, relating to the use of certain Chinese words in the text, is printed as follows:

“ Permanent victory in Manchuria largely depends upon an increase in population in Japanese colonies.

German inhabitants in Alsace-Lorraine played no small part in winning for Germany the Franco-Prussian War in 1870. If Japan has 500,000 emigrants in Manchuria, and several millions of horses, mules, and other domestic animals, they would be of great use in case of war. If in such a war opportunities are favorable to Japan, they can be armed at once to attack our enemy. If opportunities are unfavorable, they can also be used to maintain strongholds for negotiating, peace. The

peacefully disguised military preparedness' thus forms my main policy in colonizing Manchuria and Korea, In brief, this emigration policy is to practice the doctrine of Par in the name of Wong.'

"(The baron is using a maxim of Chinese political philosophy. The doctrine of Wong stresses virtue, culture, and benevolence, while that of Par, force and conquest. For example, the enlightened emperors of the Chow dynasty were said to have practiced the imperial ways of Wong, whereas its usurping vassals that of Par. Baron Goto insists that in the name of virtue and culture Japan should plan military conquests in China.)"

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she issued an ultimatum to Germany demanding the surrender of Kiauchau, but promising to return it to China, to whom, of course, it really belonged. When nothing happened Japan, assisted by Great Britain, captured the port. Instead of returning it to China, however-she has made no promise as to time!-she took over the Shantung railroad and enforced a control in the province more extensive and drastic than Germany had ever attempted. She also engaged in the familiar business of trafficking with corrupt Chinese officials. She permitted her traders to spread the demoralizing opium traffic. All this aroused the bitter suspicion and hatred of the Chinese people, who demanded that the Japanese withdraw, and later began to boycott everything Japanese.

In January, 1915, the Japanese, still eagerly improving the opportunities presented by the preoccupation of Europe, presented to China the famous or infamous “ Twenty-one Demands," part of which were kept secret from the outside world. These demands, if accepted entire, would have made China practically a vassal of Japan. When China objected, Japan sent a forty-eight-hour ultimatum (on May 7th) and China was forced to submit to a large proportion of them. And one of them gave Japan a secure foothold in the vast rich provinces of Manchuria. Since then she has entered Siberia and still sits there."

Throughout this period, the policy of the United States, except for the occupation of the Philippines, was confined to the exercise of moral pressure to maintain the integrity of China as a political unit, establish the principle of the “open door” for commercial enterprise in Eastern Asia, and a refusal to recognize the imperialistic designs of the Island Empire in Siberia and in the German possessions of the Pacific. Such a policy was, of course, contrary to the interest of Japan, and it may be, there is some significance in the suggestion that the government of that nation is using the issue of race equality, as a pawn in the

diplomatic game, because it must not be forgotten that although the British dominions maintain the necessity of a policy of exclusion with an ardency, equal to that demonstrated by our fellow citizens on the Pacific coast, all the diplomatic pressure for the recognition of race equality, seems to be focused upon the United States. Upon this point, Mr. Thomas F. Millard, author of " Conflict of Policies in Asia," says:

Japan has used this issue of “race equality" as trading stock in diplomatic negotiations without giving it the importance in her own mind which it seems to have on the surface. She does not practice race equality as between Japanese and Formosans, Koreans, or Chinese. Actual race equality in the United States would surely be unfavorable to Japanese, since Chinese and other Oriental races could undercut Japanese in America's economic field if their equality were recognized in our laws.

The race equality slogan is used for the benefit of Japanese alone. Yet Japan has carried on in all eastern Asia for years a Pan-Asian propaganda to line up Asiatic races against Europe and America. She does this, not to help the other races, but as a part of the plan of making Japan the head of a movement which will finally subject all Asia to Japan.18

However, this may be, we must recognize that Japan faces a stupendous problem through the rapid expansion of her population in a very congested area, that is to say, a population of 57,656,000 concentrated in an area of 147,698 square miles, or a density of 390.26 per square mile. It is, therefore,

not astonishing that the Japanese should cast their eyes across the Pacific and see in the three coast states of our country, covering an area of 318,095 square

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-72 “ Woodrow Wilson and World Settlement," by Ray Stannard Baker, page 243. According to the Japan Year Book, 1923, the last column of Japanese troops left Vladivostock October 25, 1922. The occupation of the Russian province of Saghalien is, however, therein stated to be still a fact. --Author.

'13 Reprinted from extension of remarks by Hon. Albert Johnson, House of Rep résentatives, June 4, 1924.

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miles, a density of population amounting to 17.5 per square mile, a possible solution of their difficulties." This in fact is precisely what some statesmen of Japan have done, for example: Mr. Sennosuke Yokata, President of the Legislative Bureau of the Japanese Cabinet is quoted by the Associated Press as follows:

The American territory is vast enough for every surplus population of the world, and the countries that suffer in this way have been allowed to look to the United States as a land for the realization of the aspirations of those who seek new life and fortunes. Appreciating at the same time the generosity and the assimilating powers of the American people, I believe that America alone can solve this great problem of mankind."

That the emigration of Japanese subjects is not regarded in quite the casual manner implied by Mr. Hanihara in his note of April 10th, and the issue not one predominately of sentiment, is evidenced through the fact that the government of Japan, according to the Monthly Labor Review, organized a Japanese Imperial Economic Council, on the first of April 1924. The purpose of the Council, according to the Review is as follows:

The council which is under the direct control of the Prime Minister, is formed to study the question of promotion of the economic progress of the Empire, to supply information for the ministers concerned, and to formulate plans for the ministries dealing with these matters.

The following questions which are of importance from the standpoint of industry and labor have been submitted to the council: The protection or encouragement of basic industries, improvement of medium and small-scale industries, promotion of the mechanical engineering industry, improvement and increase in the number of dwelling houses, and protection of emigrants and the encouragement of migration."

Having discussed the doctrine of race equality in its broad aspects from an historical and political standpoint, it is now necessary to briefly review its bearing upon our domestic situation from a legal standpoint. Since we recognize the fact that the national welfare precludes the admission of Orientals of any kind whatsoever, for permanent settlement within our territory, it is difficult to see any reasonable objection to the application of a principle which has been written upon our statute books for one hundred and thirty years.

When the interpretation of Section 2169 came before the Supreme Court as a result of the efforts of one Takao Ozawa, a person of the Japanese race, born in Japan, who sought to be admitted as a citizen of the United States through the United States District Court for the territory of Hawaii, Justice Sutherland in delivering the opinion of the Court said:

* * * The language of the Naturalization Laws from 1790 to 1870 had been uniformly such as to deny the privilege of naturalization to an alien unless he came within the description free white person.” By Section 7 of the Act of July 14, 1870, c. 254, 16 Stat. 254, 256, the naturalization laws were extended to aliens of African nativity and to persons of African descent." Section 2169 of the Revised Statutes, as already pointed out, restricts the privilege to the såme classes of persons; viz: “To aliens (being free white persons, and to aliens) of African nativity and persons of African descent." It is true that, in the first edition of the Revised Statutes of 1873, the words in brackets, “ being free white persons and to aliens,” were omitted, but this was clearly an error

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74 See Appendix E of this paper.
75 New York Times, December 4, 1921.

76 Italics are those of the author. This quotation from the Monthly Labor Review is based on industrial and labor information, Geneva, August 18, 1924, pages 17 and 18.

H. Doc. 600, 68-2- -3

of the compilers, and was corrected by the subsequent legislation of 1875. (C. 80, 18 Stat. 316, 318.)" Is appellant, therefore, a “free white person ” within the meaning of that phrase as found in the statute?

On behalf of the appellant it is urged that we should give to this phrase the meaning which it had in the minds of its original framers in 1790 and that it was employed by them for the sole purpose of excluding the black or African race and the Indians then inhabiting this country. It may be true that these races were alone thought of as being excluded, but to say that they were the only ones within the intent of the statute would be to ignore the affirmative form of the legislation. The provision is not that Negroes and Indians shall be excluded, but it is in effect, that only free white persons shall be included. The intention was to confer the privilege of citizenship upon that class of persons whom the fathers knew as white, and to deny it to all who could not be so classified. It is not enough to say that the framers did not have in mind the brown or yellow races of Asia. It is necessary to go farther and be able to say that had these particular races been suggested the language of the act would have been so varied as to include them within its privileges. As said by Chief Justice Marshall in Dartmouth College v. Woodward, 4 Wheat. 518, 644, in deciding a question of constitutional construction: “It is not enough to say that this particular case was not in the mind of the convention when the article was framed, nor of the American people, when it was adopted. It is necessary to go further and to say that, had this particular case been suggested, the language would have been so varied, as to exclude it, or it would have been made a special exception. The case being within the words of the rule, must be within its operation likewise, unless there be something in the literal construction, so obviously absurd, or mischievous, or repugnant to the general spirit of the instrument, as to justify those who expound the constitution in marking it an exception.” If it be assumed that the opinion of the framers was that the only persons who would fall outside the designation

white were Negroes and Indians, this would go no farther than to demonstrate their lack of sufficient information to enable them to foresee precisely who would be excluded by that term in the subsequent administration of the statute. It is not important in construing their words to consider the extent of their ethnological knowledge or whether they thought that under the statute the only persons who would be denied naturalization would be Negroes and Indians. It is sufficient to ascertain whom they intended to include and having ascertained that it follows, as a necessary corollary, that all others are to be excluded.?

While this case was not decided until November 13, 1922, the provisions of Section 2169 afforded in the opinion of those confronted with the Japanese problem in California, a logical basis upon which they could draft a law excluding persons ineligible for citizenship from ownership of the land within the state. It is through this circumstance that the Legislature of California embodied in their legislation, this basic principle which gave rise to bitter protest on

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77 That Congress was conscious of the menace of an Oriental migration at the time the revision of the statutes was under consideration is shown by the following quotations from the debate of 1870 : “ Mr. STEWART. *

Because we have protected our own citizens and given them their rights, because we have freed the slaves and then given them their civil and political rights, does it follow that we must extend those political rights to all people throughout the globe, whether they will accept them or not? Why, sir, it would render American citizenship a farce.

The people coming here from Europe are of our own race. They have had struggles there for liberty. They have heard of free institutions from their earliest childhood and yet even some of them have difficulty in comprehending the situation here.

But how is it with these Asiatics? They have another civilization at war with ours; a language which we shall never understand-a language which is more arbitrary and difficult than any other spoken language. "Mr. WILLIAMS.

Elements that will not coalesce with the other elements of our population and form together a national entity are dangerous to the peace and integrity of this nation. Mongolians, no matter how long they may stay in the United States, will never lose their identity as a peculiar and separate people. They never will amalgamate with persons of European descent.

Congressional Globe, 1869–70, second session, Forty-first Congress, pages 5152 and 5156.

Somewhat similar but less extended remarks were made in the Senate during the session of 1875.-Author.

78 See Appendix D of this paper for whole decision.

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the part of the government of Japan, on the ground that such enactment would be an unjust discrimination, and a violation of the Treaty of 1911. Despite a vigorous effort made on the part of the Federal Government, to induce the California Legislature to abandon this project, the situation in that state became so acute and popular passions became so aroused that finally the first land law was passed in 1913. In fact, although Mr. Bryan, then Secretary of State, had by direction of President Wilson gone to California, and with the consent of the Legislature, presented the views of the administration respecting possible violations of the Treaty of 1911, in the proposed legislation dealing with alien ownership in lands, he, nevertheless, when the final draft of the law was adopted took a firm stand that the statute did not contravene our treaty with Japan. In his reply to the objections raised by the Japanese Ambassador, Mr. Bryan said:

This treaty was based upon a draft presented by the Imperial Government. In article I of this draft there is found the following clause: "3. They (the citizens or subjects of the contracting parties) shall be permitted to own or hire and occupy the houses, manufactories, warehouses, shops and premises which may be necessary for them and to lease land for residential, commercial, industrial, manufacturing and other lawful purposes."

It will be observed that in this clause, which was intended to deal with the subject of real property, there is no reference to the ownership of land. The reason of this omission is understood to be that the Imperial Government desired to avoid treaty engagements concerning the ownership of land by foreigners and to regulate the matter wholly by domestic legislation.

In the treaty as signed the rights of the citizens and subjects of the contracting parties with reference to real property were specifically dealt with (article 1) in the stipulation that they should have liberty "to own or lense and occupy houses, manufactories, warehouses and shops” and “to lease land for residential and commercial purposes." It thus appears that the reciprocal right to lease land was confined to “residential and commercial purposes," and that the phrases “ industrial" " and other lawful purposes,” which would have included the leasing of agricultural lands, were omitted.

The question of the ownership of land was, in pursuance of the desire of the Japanese Government, dealt with by an exchange of notes in which it was acknowledged and agreed that this question should be regulated in each country by the local law and that the law applicable in the United States in this regard was that of the respective states. This clearly appears from the note of Baron Uchida to Mr. Knox of February 21, 1911, in which in reply to an inquiry of the latter on the subject, Baron Uchida said: “In return for the rights of land ownership which are granted Japanese by the laws of the various states of the United States (of which, I may observe there are now about thirty) the Imperial Government will by liberal interpretation of the law be prepared to grant land ownership to American citizens from all the states, reserving for the future, however, the right of maintaining the condition of reciprocity with respect to the separate states.

In quoting the foregoing passage I have italicized the last clause for the purpose of calling special attention to the fact that the contracting parties distinctly understood that, in conformity with the express declaration of the Imperial Japanese Ambassador, the right was reserved to maintain as to land ownership the condition of reciprocity in the sense that citizens of the United States, coming from states in which Japanese might not be permitted to own land, were to be excluded from the reciprocal privilege in Japan.

From what has been pointed out it appears to result, first, that the California Statute, in extending to aliens not eligible to citizenship of the United States right to lease lands in that state for agricultural purposes for a term not exceeding three years, may be held to go beyond the measure of privilege established in the treaty, which does not grant the right to lease agricultural lands at all; and, secondly, so far as the statute may abridge the right of such aliens to own lands within the states the right has been reserved by the Imperial Government to act upon the principle of exact reciprocity

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