standing you have always manifested in our long association, I had no doubt that these words were to be taken in the sense you have stated, and I was quite sure that it was far from your thought to express or imply any threat. I am happy to add that I have deeply appreciated your constant desire to promote the most cordial relations between the peoples of the two countries. With high esteem, I am, my dear Mr. Hanihara,

Very sincerely yours,

His Excellency, Mr. MASANAO HANIHARA,

Ambassador of Japan, Washington, D. C.

CHARLES E. HUGHES.

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Honorable CHARLES E. HUGHES,

Secretary of State.

JAPANESE EMBASSY, Washington, May 31, 1924.

SIR: In pursuance of instructions from my Government, have the honor to present to you herewith a memorandum enunciating the position of Japan on the subject of the discriminatory provisions against Japanese which are embodied in section 13 (c) of the immigration act of 1924, approved May 26, 1924.

MEMORANDUM

"The Japanese Government are deeply concerned by the enactment in the United States of an act entitled the 'Immigration act of 1924.' While the measure was under discussion in the Congress they took the earliest opportunity to invite the attention of the American Government to a discriminatory clause embodied in the act, namely, section 13 (c), which provided for the exclusion of aliens ineligible to citizenship in contradistinction to other classes of aliens, and which is manifestly intended to apply to Japanese. Neither the representations of the Japanese Government nor the recommendations of the President or of the Secretary of State were heeded by the Congress, and the clause in question has now been written into the statutes of the United States.

"It is, perhaps, needless to state that international discriminations in any form and on any subject, even if based on purely economic reasons, are opposed to the principles of justice and fairness upon which the friendly intercourse between nations must, in its final analysis, depend. To these very principles the doctrine of equal opportunity, now widely recognized, with the unfailing support of the United States, owes its being. Still more unwelcome are discriminations based on race. The strong condemnation of such practice evidently inspired the American Government in 1912 in denouncing the commercial treaty between the United States and Russia, pursuant to the resolution of the House of Representatives of December 13, 1911, as a protest against the unfair and unequal treatment of aliens of a particular race in Russia. Yet discriminations of a similar character is expressed by the new statute of the United States. The immigration act of 1924, considered in the light of the Supreme Court's interpretation of the naturalization laws, clearly establishes the rule that the admissibility of aliens to the United States rests not upon individual merits or qualifications but upon the division of race to which applicants belong. In particular it appears that such racial distinction in the act is directed essentially against Japanese, since persons of other Asiatic races are excluded under separate enactments of prior dates, as is pointed out in the published letter of the Secretary of State of February 8, 1924, to the chairman of the Committee on Immigration and Naturalization of the House of Representatives.

"It has been repeatedly asserted in defense of these discriminatory measures in the United States that persons of the Japanese race are not assimilable to American life and ideals. It will, however, be observed, in the first place, that few immigrants of a foreign stock may well be expected to assimilate themselves to their new surroundings within a single generation. The history of Japanese immigration to the United States in any appreciable number dated but from the last few years of the nineteenth century, The period of time is too short to permit of any conclusive judgment being passed upon the racial adaptabilities of those immigrants in the matter of assimilation, as compared with alien settlers of the races classed as eligible to American citizenship.

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'It should further be remarked that the process of assimilation can thrive only in a genial atmosphere of just and equitable treatment. Its natural growth is bound to be hampered under such a pressure of invidious discriminations as that to which Japanese residents in some States of the American Union have been subjected, at law and in practice for nearly twenty years. It seems hardly fair to complain of the failure of foreign elements to merge in a community while the community chooses to keep them apart from the rest of its membership. For these reasons the assertion of Japanese non-assimilability seems at least premature, if not fundamentally unjust.

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Turning to the survey of commercial treaties between Japan and the United States, Article II of the treaty of 1894 contained a clause to the following effect:

"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 may hereafter be enacted in either of the two countries.' When the treaty was revised in 1911 this provisory clause was deleted from the new treaty at the request of the Japanese Government, retaining the general rule which assures the liberty of entry, travel, and residence; and, at the same time, the Japanese Government made the following declaration, dated February 21, 1911, which is attached to the treaty:

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"In proceeding this day to the signature of the treaty of commerce and navigation between Japan and the United States the undersigned Japanese ambassador in Washington, duly authorized by his Government, has the honor to declare that the Imperial Japanese Government are fully prepared to maintain with equal effectiveness the limitation and control which they have for the past three years exercised in regulation of the emigration of laborers to the United States.'

"In proceeding to the exchange of ratifications of the revised treaty, the Acting Secretary of State communicated to the Japanese Ambassador on February 25, 1911, that the advice and consent of the Senate to the ratification of the treaty is given with the understanding, which is to be made part of the instrument of ratification, that the treaty shall not be deemed to repeal or affect any of the provisions of the act of Congress entitled "An act to regulate the immigration of aliens into the United States," approved February 20, 1907.' The Acting Secretary of State then added:

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Inasmuch as this act applies to the immigration of aliens into the United States from all countries and makes no discrimination in favor of any country, it is not perceived that your Government will have any objection to the understanding being recorded in the instrument of ratification.'

"The foregoing history will show that throughout these negotiations, one of the chief preoccupations of the Japanese Government was to protect their nationals from discriminatory immigration legislation in the United States. That position of Japan was fully understood and appreciated by the American Government and it was with these considerations in view that the existing treaty was signed and the exchange of its ratification effected. In this situation, while reserving for another occasion the presentation of the question of legal technicality, Whether and how far the provisions of section 13 (c) of the immigration act of 1924 are inconsistent with the terms of the treaty of 1911, the Japanese Government desire now to point out that the new legislation is in entire disregard of the spirit and circumstances that underlie the conclusion of the treaty.

"With regard to the so-called gentlemen's agreement, it will be recalled that it was designed, on the one hand, to meet the actual requirements of the situation as perceived by the American Government, concerning Japanese immigration, and on the other, to provide against the possible demand in the United States for a statutory exclusion which would offend the just susceptibilities of the Japanese people. The arrangement came into force in 1908. Its efficiency has been proved in fact. The figures given in the annual report of the United States Commissioner General of Immigration authoritatively show that during the fifteen years from 1908 to 1923, the excess in number of Japanese admitted to continental United States over those who departed was no more than 8,681 all together, including not only immigrants of the laboring class, but also merchants, students and other non-laborers and non-immigrants, the numbers which naturally increased with the growth of commercial, intellectual and social relations between the two countries. If even so limited a number should in any way be found embarrassing to the United States, the

Japanese Government have already manifested their readiness to revise the existing arrangement with a view to further limitation of emigration.

"Unfortunately, however, the sweeping provisions of the new act, clearly indicative of discrimination against Japanese, have made it impossible for Japan to continue the undertakings assumed under the gentlemen's agreement. An understanding of friendly cooperation reached after long and comprehensive discussions between the Japanesee and American Governments has thus been abruptly overthrown by legislative action on the part of the United States. The patient, loyal and scrupulous observance by Japan for more tham sixteen years of these self-denying regulations, in the interest of good relations; between the two countries, now seems to have been wasted.

"It is not denied that, fundamentally speaking, it lies within the inherent sovereign power of each State to limit and control immigration to its own domains, but when, in the exercise of such right, an evident injustice is done to a foreign nation in disregard of its proper self-respect, of international understandings or of ordinary rules of comity, the question necessarily assumes. an aspect which justifies diplomatic discussion and adjustment.

“Accordingly, the Japanese Government consider it their duty to maintaim and to place on record their solemn protest against the discriminatory clause in section 13 (c) of the immigration act of 1924 and to request the American Government to take all possible and suitable measures for the removal of such discrimination."

I am instructed further to express the confidence that this communication will be received by the American Government in the same spirit of friendliness and candor in which it is made.

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Accept, sir, the renewed assurances of my highest consideration.

His Excellency, Mr. MASANAO HANIHARA,

Japanese Ambassador

EXCELLENCY: I have the honor to acknowledge the receipt of your note under date of May 31st containing a memorandum stating the position of the Japanese Government with respect to the provision of section 13 (c) of the immigration act of 1924. I take pleasure in noting your reference to the friendliness and candor in which your communication has been made and you may be assured of the readiness of this Government to consider in the same spirit the views you have set forth.

At the time of the signing of the immigration bill the President issued a statement, a copy of which I had the privilege of handing to you, gladly recognizing the fact that the enactment of this provision "does not imply any change in our sentiment of admiration and cordial friendship for the Japanese people, a sentiment which has had and will continue to have abundant manifestation." Permit me to state briefly the substance of the provision. Section 13 (c) related to all aliens ineligible to citizenship. It establishes certain exceptions, and to these classes the exclusion provision does not apply, to wit:

Those who are not immigrants as defined in section 3 of the act, that is (1) a Government official, his family, attendants, servants, and employees, (2) an alien visiting the United States temporarily as a tourist or temporarily for business or pleasure, (3) an alien in continuous transit through the United States, (4) an alien lawfully admitted to the United States who later goes in transit from one part of the United States to another through foreign contigucus territory, (5) a bona fide alien seaman serving as such on a vessel arriving at a port of the United States and seeking to enter temporarily the United States solely in the pursuit of his calling as a seaman, and (6) an alien entitled to enter the United States solely to carry on trade under and in pursuance of the provisions of a present existing treaty of commerce and navigation.”

Those who are admissible as no-quota immigrants under the provisions of subdivisions (b), (d) or (e) of section four, that is "(b) an immigrant previously lawfully admitted to the United States, who is returning from a temporary visit abroad; (d) an immigrant who continuously for at least two years. immediately preceding the time of his application for admission to the United States has been and who seeks to enter the United States solely for the purpose of carrying on the vocation of minister of any religious denomination, or professor of a college, academy, seminary or university, and his

wife, and his unmarried children under 18 years of age, if accompanying or following to join him; or (e) an immigrant who is a bona fide student at least 15 years of age and who seeks to enter the United States solely for the purpose of study at an accredited school, college, academy. seminary or university, particularly designated by him and approved by the Secretary of Labor, which shall have agreed to report to the Secretary of Labor the termination of attendance of each immigrant student, and if any such institution of learning fails to make such reports promptly the approval shall be withdrawn.

Also the wives or unmarried children under 18 years of age of immigrants admissible under subdivision (d) of section four, above quoted.

It will be thus observed that, taking these exceptions into account, the provision in question does not differ greatly in its practical operation, or in the policy which it reflects, from the understanding embodied in the gentlemen's agreement under which the Japanese Government has cooperated with the Government of the United States in preventing the emigration of Japanese laborers to this country. We fully and gratefully appreciate the assistance which has thus been rendered by the Japanese Government in the carrying out of this long-established policy, and it is not deemed to be necessary to refer to the economic considerations which have inspired it. Indeed, the appropriateness of that policy which has not evidenced any lack of esteem for the Japanese people, their character and achievements, has been confirmed rather than questioned by the voluntary action of your Government in aiding its execution.

The point of substantial difference between the existing arrangement and the provision of the immigration act is that the latter has expressed, as the President has stated, "the determination of the Congress to exercise its prerogative in defining by legislation the control of immigration instead of It is not understood that this leaving it to international arrangements." prerogative is called in question, but, rather, your Government expressly recognizes that "it lies within the inherent sovereign power of each State to limit and to control immigration in its own domains," an authority which it is believed the Japanese Government has not failed to exercise in its own discretion with respect to the admission of aliens and the conditions and location of their settlement within its borders. While the President would have preferred to continue the existing arrangement with the Japanese Government, and to have entered into negotiations for such modifications as might seem to be desirable, this Government does not feel that it is limited to such an international arrangement or that by virtue of the existing understanding or of the negotiations which it has conducted in the past with the Japanese Government, it has in any sense lost or impaired the full liberty of action which it would otherwise have in this matter. On the contrary, that freedom with respect to the control of immigration, which is an essential element of sovereignty and entirely compatible with the friendly sentiments which animate our international relations, this Government in the course of these negotiations always fully reserved.

Thus in the treaty of commerce and navigation concluded with Japan in 1894 it was expressly stipulated in Article II:

"It is, however, understood that the stipulations contained in this and the preceding article do not in any way affect the laws, ordinances or 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."

It is true that at the time of the negotiation of the treaty of 1911 the Japanese Government desired that the provision above quoted should be eliminated and that this Government acquiesced in that proposal in view of the fact that the Japanese Government had, in 1907-8, by means of the gentlemen's agreement, undertaken such measures of restriction as it was anticipated would prove adequate to prevent any substantial increase in the number of Japanese laborers in the United States. In connection with the treaty revision of 1911 the Japanese Government renewed this undertaking in the form of a declaration attached to the treaty. In acquiescing in this procedure, however, this Government was careful to negative any intention to derogate from the full right to exercise in its discretion control over immigration. In view of the statements contained in your communication with respect to these negotiations I feel that I should refer to the exchange of views then had. You will recall that, in a memorandum of October 19, 1910, suggesting a basis for the treaty revisions then in contemplation, the Japanese Embassy stated:

The measures which the Imperial Government have enforced for the past two and a half years in regulation of the question of emigration of laborers to the United States have, it is believed, proved entirely satisfactory and far more effective than any prohibition of immigration would have been. Those measures of restraint were undertaken voluntarily, in order to prevent any dispute or issue between the two countries on the subject of labor immigration, and will be continued, it may be added, so long as the condition of things calls for such continuation.

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'Accordingly, having in view the actual situation, the Imperial Government are convinced that the reservation in question is not only not necessary, but that it is an engagement which, if continued, is more liable to give rise to misunderstandings than to remove difficulties. In any case, it is a stipulation which not unnaturally is distasteful to national sensibilities. In these circumstances the Imperial Government desire in the new treaty to suppress entirely the reservation above mentioned, and to leave, in word as well as in fact, the question to which it relates for friendly adjustment between the two Governments independently of any conventional stipulations on the subject. In expressing that desire they are not unmindful of the difficulties under which the United States labor in the matter of immigration, and they will accordingly, if so desired, be willing to make the proposed treaty terminable at any time upon six months' notice.

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The Japanese Embassy is satisfied that in the presence of such a termination clause the contracting States would actually enjoy greater liberty of action, so far as immigration is concerned, than under the existing reservation on the subject, however liberally construed."

Replying to these suggestions, the Department of State declared in its memorandum sent to the Japanese ambassador on January 23, 1911, that it was prepared to enter into negotiations for a new treaty of commerce and navigation on the following bases:

"The Department of State understands, and proceeds upon the understanding, that the proposal of the Japanese Government made in the above-mentioned memorandum is that the clause relating to immigration in the existing treaty be omitted for the reason that the limitation and control which the Imperial Japanese Government has enforced for the past two and half years in regulation of emigration of laborers to the United States, and which the two Governments have recognized as a proper measure of adjustment under all the circumstances, are to be continued with equal effectiveness during the life of the new treaty, the two Governments, when necessary, cooperating to this end; the treaty to be made terminable upon six mothns' notice.

"It is further understood that the Japanese Government will at the time of signature of the treaty make a formal declaration to the above effect, which may, in the discretion of the Government of the United States, be made public. "In accepting the proposal as a basis for the settlement of the question of immigration between the two countries, the Government of the United States does so with all necessary reserves and without prejudice to the inherent sovereign right of either country to limit and control immigration to its own domains or possessions."

On February 8, 1911, in a memorandum informing the Department of State of the readiness of the Japanese Government to enter upon the negotiations which had been suggested by the embassy and to which the department had assented subject to the reservation above quoted, the Japanese Embassy stated that "the Imperial Government concur in the understanding of the proposal relating to the question of immigration set forth in the above mentioned note of January 23 last."

It was thus with the distinct understanding that it was without prejudice to the inherent sovereign right of either country to limit and control immigration to its own domains or possessions that the treaty of 1911 was concluded, While this Government acceded to the arrangement by which Japan undertook to enforce measures designed to obviate the necessity of a statutory enactment, the advisability of such an enactment necessarily remained within the legislative power of this Government to determine. As this power has now been exercised by the Congress in the enactment of the provision in question this legislative action is mandatory upon the executive branch of the Government and allows no latitude for the exercise of executive discretion as to the carrying out of the legislative will expressed in the statute.

It is provided in the immigration act that the provision of section 13 (c), to which you have referred, shall take effect on July 1, 1924. Inasmuch as