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sentatives are maintained do not authorize the establishment or maintenance of immigration stations of any kind, nor the performance of any of their functions on foreign soil; neither does diplomatic usage sanction it. These officers and the performance of these functions within the territory of a foreign sovereignty without the consent of such country is impossible, unless enforced by war.
The motive which prompts them to consent to the establishment and maintenance of consulates and embassies is mutual commercial and diplomatic interest. This mutuality of interest does not exist as to immigration. Japan, China, England, Spain, Italy, and other Old World countries, usually want a place to which they can send their surplus or undesirable population. Our immigration laws are designed to prevent their unloading this surplus and burdensome population on us. Thus we desire to prevent what they desire to do concerning immigration. They will not go beyond the limits of diplomatic usage to agree with us upon the establishment of agencies on their soil by which they would help us do what they want to prevent. This is not merely natural and logical; it is actual.
The phrases “selecting immigrants abroad" and "selecting immigration at its source may mean selection at a few great clearing houses abroad, or it might mean going to their very doors to choose them. Let us consider the suggestion interpreted into each of these meanings. It is impossible to go to each immigrant's home or lodgings to look him over and accept or reject him or her there. They come from millions of homes or lodgings, in every nook and cranny of the world. To seek out each prospective immigrant at his place of abode and have him examined as to health, social and moral desirability, is an impossible undertaking, which will be rejected upon its suggestion. To establish ample immigration stations and forces in every country of the world, equip and maintain them, would be at prohibitive expense, and involve administrative difficulties which would make it impossible. Some of these will be pointed out in subsequent paragraphs. The establishment of a few great immigration clearing houses on the seacoasts of Europe, Africa, and Asia would itself involve an enormous additional expense, and would not eliminate our present home establishments and expenses; but, aside from that, no country in which we would want to establish such agencies would think of permitting it.
If one of these were maintained in London or on the coast of France, or Spain, or Italy, it would mean that millions of all kinds of people, including the criminal, diseased, and insane, would gather from all the countries near and back of that portion of Europe to be examined and have the bad rejected and left upon the country which was foolish enough to permit us to make it such a dumping ground. Does anybody imagine that the United States would permit Canada, which has a restrictive immigration policy, to maintain two or three such stations in the United States near the border, at which hundreds of thousands of all classes would gather and where the worst of all classes would be rejected and left in the midst of our people? Some countries of Europe, particularly France, probably others, have complained, officially or unofficially, because the path of the diseased and criminal immigrants from the central and back portions of Europe and sections of Asia to the United States leads through their countries. It has been officially ascertained that certain diseases prevalent among our immigrants have been increased and extended along this trail traveled by the motley millions coming to America. How much worse it would be if the worst were stopped and left among the people of England or France.
Clearing houses at central points in Europe, Asia, or Africa would not elinimate our inspection immigration service at home, because we could not maintain guards along every foreign coast and on every sea to prevent immigrants from avoiding these clearing houses, as thousands of them now avoid our home iminigration stations. The work of inspecting alien seamen would also have to be done at our seaports. The great numbers of would-be immigrants who come from or through Mexico and Canada, and from all South America and the West Indies, would have to be guarded against and inspected.
The selection of immigrants at foreign clearing houses, or even at the very source of immigration, would be a very slow and cumbersome process unless we made the finding of each subordinate or the administrative head at each station final and subject to no appeal. A policy which gave to subordinate officers, or even the heads of local stations, conclusive and final authority is inconsistent with the genius of our Government and our thoroughly established policy. We do not permit it, even when our immigration commissioners act within our own boundaries, as it were, under the eye of the Commissioner General of Immigration, the Secretary of Labor, and the numerous inspectors under their direction; much less could we permit it in far-away Europe or Asia. Every immigrant offering has a right to have his case appealed to Washington and the findings of the commissioner and boards of inquiry reviewed by a higher and usually more competent authority. This very process causes delays now, of which much complaint is made by those who delight in criticizing all restrictive laws and their operation. But it is a much quicker, simpler procedure to have an appeal in such case rushed from Baltimore, New York, Boston, or even San Francisco, to Washington for early disposition than it would be to send it from Warsaw or Constantinople or Tokyo and wait weeks for final action and instruction.
One argument advanced in favor of foreign selection is that it would protect immigrants from the hardship resulting from their selling their effects and breaking themselves loose from their homes and sources of livelihood, expecting to be admitted to the United States, and thereafter finding themselves denied admission and thrown adrift, penniless, friendless, and away from home. Unless these stations were located, at prohibitive cost, in hundreds of places, the prospective immigrants could not be selected near their present homes. The establishment of immigration stations in a few great cities on the coasts of Europe, Asia, and Africa would not meet this difficulty. These seaports are hundreds of miles from the present homes of most of the immigrants, and in countries foreign and strange to them. They would have to go in families hundreds of miles, often across national boundaries, necessitating passports, and a great part of the travel, expense, and difficulty which they now meet. The average immigrant can not, without selling all, carry his family from the center or back side of Europe to the seacoast for examination. If he could, he would not know how long it would require him to return to his home with his family, to sell out and thereafter return to the immigration station on the coast. The uncertainty, delay, expense, and other difficulties of such a course would forbid its adoption by the average immigrant. He usually sells all; and, under the pi posed plan would sell all, and break up completely, before leaving his old home to go to the place of inspection and embarkation. The risk of this break-up would have to be incurred under any system except one which sent the inspector to each immigrant at or near his present home, which is manifestly impossible.
The suggestion that the “division of families” would be avoided by foreign selection will not bear examination. If a man migrated five years ago, and lawfully or unlawfully, entered the United States, leaving his family in Europe or Asia, and has decided to stay away from them, unless they are successful in their efforts to come to him, will their rejection in Europe or Asia reunite the family? If a whole family start together, and part of them stand the tests and enter, while others can not meet the requirements as to health, intelligence, or numbers, and are rejected in Europe, will that keep them together? Not if the admissible members elect to remain away from the rejected members, which they must do under the present system to create a case of “separation.
The steamship companies, relatives, and other opponents of restriction, and some restrictionists, are engaging in this talk of regulating immigration at the source, which means, among other impossible things, treaty control of immigration. The letter of the Italian ambassador to Secretary Hughes, above quoted, states in polite, diplomatic language, "that the Italian Government would be most willing to meet the wishes of the United States in conforming its emigratory services so as to satisfy the reasonable requirements of the American regulations, if both can be made the subject of a specific agreement beforehand, as already suggested. The reader will observe two suggestions in the clause quoted: First, that Italy has an “emigratory service”; which is true. It has a regularly organized system under which, for the profit of the business and for relief from its burdensome surplus population, it is sending its people away. Many other crowded countries are doing the same thing by different methods. Second, it has proposed that we make our regulations “reasonable" to Italy and that we make them “the subject of a specific agreement beforehand, which means that we would have to agree with Italy about our immigration policy. Under the present system we have to agree with nobody about it; which is fortunate, because they want to unload on us and we want to avoid having them do it.
Ambassador Geddes, of Great Britain, is quoted as favoring the adoption by the United States of a policy of foreign selection “if possible. The words wif possible” are considerably used by that accomplished diplomat, doubtless brcause he appreciates that it probably is not possible; but Ambassador Geddes's suggestion in behalf of England, is in line with that made by the Italian Goveroment in behalf of Italy. Both are based on our obtaining the consent of foreign governments; which is itself contingent upon our consulting their interests in our immigration policy. That would withdraw our control of immigration from the forum where our own will prevails, and gives it to another, the treaty-making power, where foreign ambassadors, serving foreign peoples, would have a voice, and must give their consent before any policy could be adopted. In that consultation Congress, representing the American people, would have no voice. Naturally foreign governments and their ambassadors favor it. Naturally our own Government should be too wise to make the mistake. This brings us to the discussion of the treaty regulation of immigration, to which I invite attention.
It has been shown that the adoption of the plan of foreign inspection depends upon treaty agreements, and that treaty agreements depend upon our complying with the wishes of foreign governments in our immigration policies; their wishes being to dispose of their surplus and least desirable population, and ours being to have the best immigrants or none. Treaties regulating immigration would become the supreme law of the land. Our part of immigration regulation would pass to the President as the treaty-making power, subject to the ratification or rejection of the Senate. The House would lose all voice in this question; so would Congress, as a whole, though the Senate as a part of the treaty-making power would have the legal right to be consulted. However, the Nation's practical experience proves that the President might make agreement without the advice and consent of the Senate, and that such agreements might control immigration, as will be shown hereafter.
Our experience as to the attitude of our Presidents toward this problem should warn us of the danger of passing absolute or chief control of it to him. The President's constant contact with delicate and difficult questions of our foreign relations, and the necessity of maintaining cordial intercourse with foreign countries, expose him and his advisers and agencies to constant pressure toward a tendency to too great liberality in immigration laws and regulations. Our people now almost unanimously agree that we have heretofore been ruinously loose in our immigration policies; but even such restrictive measures as have been adopted in the past have nearly all been enacted in the face of Executive opposition. Nearly every step forward has been in spite of the President's veto.
In 1879 President Hayes vetoed the first Chinese exclusion act. (2 I. C. R. 580.) In 1882 President Arthur vetoed an act suspending Chinese immigration for a period of 20 years. (2 I. C. R. 581.) On March 3, 1897, President Cleveland vetoed an immigration act excluding illiterates. (2 I. C. R. 573.) President Taft vetoed an immigration bill in 1913 containing a restriction against the admission of illiterates. (P. 101, Rec., special sess., 59th Cong.) In 1917 President Wilson vetoed an act excluding illiterates, but Congress passed it over his veto. The present percentage quota immigration law was first passed by the Sixty-sixth Congress, but failed because President Wilson withheld his approval. It was again passed by the Sixty-seventh Congress and later extended, both acts having been approved by President Harding, whose action on these measures was about the first approvals by a President of the United States of any measure designed to reduce, or strictly regulate, immigration from foreign countries.
In 1863 the Burlingame treaty between the United States and China declared it to be the inalienable right of men to migrate and emigrate at will. California had then been for 15 years alarmed and in trouble on account of the coming of great numbers of Chinese. The California Legislature had passed laws in efforts to protect the State. Pacific coast cities had passed ordinances for the same purpose. Congress itself, in 1862, had taken note of the degradation and slavery of Chinese coolie laborers, and had forbidden American ships to transport them. This was seven years before the Burlingame treaty was made by the President and ratified by the Senate, declaring the right of such people to migrate to the United States to be “inalienable.' So aptly did the treaty-making power deal with the problem in that instance.
Conditions in California and on the Pacific coast were then and soon afterwards so bad that, in 1872, California was pleading with Congress for the exclusion of the Chinese; that is, for the termination of the “inalienable right” of Chinese to come to America in tens, or even hundreds of millions.
A congressional committee was sent to California, where it found conditions very bad. In 1879 Congress passed what was practically a Chinese exclusion act and undertook to abrogate the onboxious sections of the Burlingame treaty of 1869.
Here another unfortunate incident to immigration regulation by treaty developed. President Hayes vetoed the act of 1879, practically excluding
Chinese immigration, and gave as one reason his contention that Congress had no right to abrogate a treaty. That action illustrates the fact that the President can by his veto nullify an act of Congress, unless a majority of two-thirds or more can be induced to override the veto. It would also appear that the President, by and with the approval of two-thirds of the Senate, can make a treaty, which, being later than an act of Congress, would become the supreme law of the land, and repeal or abrogate an act of Congress, even if it had passed over the President's veto. This last probably would not occur; but, under our system, administration and Senate majorities might so change as to make it possible. After the treaty of 1868, explicitly declaring that Asiatics had the inalienable right to migrate to the United States, and the veto of President Hayes to the act of 1879, because it impaired that treaty, a new treaty was made between the United States and China in 1880, in which China consented for the United States to suspend the coming of laborers only, but the treaty explicitly prohibited the United States to forbid general Chinese immigration. In that same year Congress passed an act suspending Chinese immigration for 20 years, but President Arthur vetoed the act, chiefly because a 20-year suspension of Chinese immigration was not in keeping with the last treaty with China, which permitted the United States to only limit or suspend the coming of laborers in such a manner and to such an extent as should be "reasonable.
It was soon found that this immigration treaty was unwise and the United States asked China to agree to its abrogation; but China objected and delayed, until Congress passed a drastic exclusion law, from which the President withheld his approval until be became convinced that China would not enter into a new treaty abrogating the treaty of 1880, of which the United States was by then anxious to be rid. That was the second successive failure of the treaty. making power of our Government to handle Chinese immigration in a manner which our own people would tolerate.
President Roosevelt's agreement with Japan, made in 1908, commonly called “the gentleman's agreement,” has now been recognized by both countries for some 15 years. Both Japan and the United States have insisted that they were living up to its terms.
The use of the word "agreements” in the immigration acts of 1920 and 1922, both passed by the two Houses of Congress and approved by the President, was a conscious and deliberate recognition of the “agreement” made by President Roosevelt with Japan, regulating immigration from that country to the United States. Yet that agreement was made by the President regardless of the wishes of Congress and without the consent of the Senate. It was never submitted to the Senate for ratification. That agreement was held up to the legislature of the State of California as a valid treaty, prevailing over the will and power of that State legislative body. In a letter which President Roosevelt wrote to Speaker Stanley of the lower House of the California Legislature, under date of February 8, 1909, protesting against certain anti-Japanese legislation then pending in that legislature, among other things, President Roosevelt said:
“But such a bill as this school bill accomplishes literally nothing whatever in the line of the object aimed at and gives just cause for irritation, while in addition the United States Government would be obliged immediately to take action in the Federal courts to test such legislation, as we hold it to be clearly a violation of the treaty.”
Thus President Roosevelt called this agreement, made without submission to the Senate, a “treaty” and threatened the Legislature of California with its prevailing power as a treaty, to which the Legislature of California submitted.
In my judgment that agreement has always been without legal or binding force. However, at least two Presidents have recognized it as valid, and one of them has called it a treaty. Congress has twice recognized it, and a sovereign State has submitted to it as the supreme law of the land. In addition, it has been in operation between two great countries for some 15 years, during which it has regulated the immigration from Japan to the United States. Manifestly, then, it is possible that the President might, without consulting Congress or even the Senate, inaugurate a system of immigration regulation according to his own will. Because that has been done in a very vital immigration connection and a precedent thereby set, it is more apt to be done again. Under such a system neither Congress nor the Senate would have any voice in immigration regulation.
This vital function should be performed throughout the future as it has in the past, notwithstanding the regrettable exceptions named; then the people will retain power, through their elected representatives in the House and Senate, to protect themselves by wholesome immigration laws, as they have been striving to do for many years, in the face of great difficulties, some of which have their origin in lack of Executive sympathy.
The loss by the people of the power to control immigration through their elected representatives, in the transfer of that power from Congress to the Executive alone, or to him as the chief part of our country's part of the power to make treaties, would be an irreparable calamity. As already shown, foreign countries, under the promptings of self-interest, must consent to the provisions of treaties. Under that system our immigration policy would be shaped not by the representatives of our people but partly by our treaty-making power, and partly by foreign countries. If that policy should ever be generally and permanently adopted it would entail consequences too tragic to be stated here.