APPENDIX I

THE AMERICAN-JAPANESE TREATY OF NOVEMBER 22, 1894

"In order that the best results might follow from an enforcement of the regulations, an understanding was reached with Japan that the existing policy of discouraging emigration of its subjects of the laboring classes to continental United States should be continued, and should, by co-operation of the Governments, be made as effective as possible. This understanding contemplates that the Japanese Government shall issue passports to continental United States only to such of its subjects as are non-laborers or are laborers who, in coming to the continent, seek to resume a formerly acquired domicile, to join a parent, wife, or children residing there, or to assume active control of an already possessed interest in a farming enterprise in this country, so that the three classes of laborers entitled to receive passports have come to be designated 'former residents,' 'parents, wives, or children of residents,' and 'settled agriculturists.'

"With respect to Hawaii, the Japanese Government of its own volition stated that, experimentally at least, the issuance of passports to members of the laboring classes proceeding thence would be limited to 'former residents' and 'parents, wives, or children of residents.' The said Government has also been exercising a careful supervision over the subject of emigration of its laboring class to foreign contiguous territory." 1

APPENDIX III

THE AMERICAN-JAPANESE TREATY OF FEBRUARY 11, 1911 See p. 289.

1 From Report of Commissioner General of Immigration, 1908, p. 125. Cf. also Appendices IV and IX.

APPENDIX IV

THE GENTLEMEN'S AGREEMENT AND HAWAII

Hon. ALBERT JOHNSON,

House of Representatives

DEPARTMENT OF STATE, WASHINGTON, August 16, 1921

MY DEAR MR. JOHNSON: I have carefully considered the letter of July 6, 1921, in which you ask, by direction of the Committee on Immigration and Naturalization of the House of Representatives, if not incompatible with the public interest, for its information in discussing a matter now before it in connection with House joint resolution 171, for all the correspondence upon which is based the so-called gentlemen's agreement between the Imperial Government of Japan and the United States.

This correspondence covers a considerable period, is quite voluminous, and has never been made public. It is not in accordance with diplomatic usage to publish correspondence with a foreign Government without that Government's assent; and no understanding has yet been had with the Japanese foreign office with respect to this correspondence.

In regard to the connection between the so-called gentlemen's agreement and the understanding in regard to Hawaii, I may state that, at the time this arrangement was made, there was a recognition of the fact that conditions in the Hawaiian Islands were different from those on the mainland, and a corresponding disposition on both sides to regard the Hawaiian Islands as being outside the scope of the discussion, but the Japanese Government undertook to permit no labor emigration to the islands except returning emigrants and the parents, wives, and children of those already resident there, and not to depart from this policy without ascertaining from an American official source the labor conditions in the islands. During the course of these negotiations the American ambassador in Tokyo had occasion to address the Japanese minister for foreign affairs as follows:

"It is quite true that the conditions attaching to the Hawaiian Islands and to the United States proper are somewhat different, and yet this difference is not fundamental. The islands are a part of the territory of the United States and the reasons for regulating labor conditions therein are quite as strong and cogent as in respect to the mainland. "If I correctly understand your excellency, it is proposed, in substance, that the Imperial Japanese Government shall have the right to judge as to the extent of emigration to those islands. It may be true that a separate consideration will be found necessary in respect to labor emigration to Hawaii, for the reasons which you state, yet the understanding

should be unequivocal that the United States Government must be the final judge.

"It is noted with pleasure that the present intention of your excellency's Government is to prohibit altogether emigration to Hawaii. As to the future, if it should be at any time represented that additional Japanese laborers can find profitable employment there, it is suggested that the Japanese Government will co-operate with the Government of the United States in ascertaining the true conditions and that the emigration to follow be limited to the requirements as may be thus ascertained, similar inquiry and action to be taken from time to time thereafter at the instance of either Government."

The Japanese minister for foreign affairs replied that he was "gratified to find in the ambassador's statement with reference to the course to be adopted in the event of future renewal of Japanese emigration to Hawaii, substantial accord with the opinion entertained by the Imperial Government, which is that if at any time hereafter it should appear desirable to depart from the present policy of prohibition, that step should only be taken after ascertaining through an American official source the labor conditions prevailing in the islands and the need thereof."

The Government of the United States did not feel warranted in pressing the Hawaiian question any further, particularly in view of the attitude of the government of Hawaii as set forth in a letter from the governor of Hawaii to the Secretary of the Interior, of January 24, 1908, reading in part as follows:

66

The recent action of the Japanese Government in regard to Japanese immigration emphasizes the need of leaving no stone unturned to secure the passage of the immigration bill making possible the introduction of Europeans. That action is creating some uneasiness here. It may materially limit Japanese immigration; in which case, if the immigration bill does not pass, we shall be cut off at both ends, a result that may prove very disastrous. Obtaining Europeans, when made possible, will be slow at best and we can not begin too early. * * *

"We do not wish to lose the Japanese until we can get Europeans or Americans."

In any case, however, it should be borne in mind that the so-called gentlemen's agreement is not enforceable at law in the United States, and that consequently the phrase "aliens otherwise inadmissible" as used in House joint resolution 171 can refer, in the case of Japanese, only to those who are not admissible under our general immigration laws. I am, my dear Mr. Johnson, sincerely yours,

(Signed) CHARLES E. HUGHES.a

'Printed in "Labor Problems in Hawaii,” Hearings before House Committee on Immigration and Naturalization, 67th Cong., 1st sess., pt. 2, p. 928.

APPENDIX V

SUPREME COURT CASES

1. TAKAO Ozawa, v. United STATES1

Argued October 3 and 4, 1922 Decided November 13, 1922

The appellant is a person of the Japanese race born in Japan. He applied, on October 16, 1914, to the United States district court for the territory of Hawaii to be admitted as a citizen of the United States. His petition was opposed by the United States District Attorney for the District of Hawaii. Including the period of his residence in Hawaii, appellant had continuously resided in the United States for twenty years. He was a graduate of the Berkeley, California, High School, had been nearly three years a student in the University of California, had educated his children in American schools, his family had attended American churches, and he had maintained the use of the English language in his home. That he was well qualified by character and education for citizenship is conceded.

The District Court of Hawaii, however, held that, having been born in Japan, and being of the Japanese race, he was not eligible to naturalization under § 2169 of the Revised Statutes, and denied the petition. . . .

. . 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 §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 same 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 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?

We have been furnished with elaborate briefs in which the meaning of the words "white person" is discussed with ability and at length, both from the standpoint of judicial decision and from that of the science of

1260 U.S. 178.

ethnology. It does not seem to us necessary, however, to follow counsel in their extensive researches in these fields. It is sufficient to note the fact that these decisions are, in substance, to the effect that the words import a racial, and not an individual, test, and with this conclusion, fortified as it is by reason and authority, we entirely agree. Manifestly the test afforded by the mere color of the skin of each individual is impracticable, as that differs greatly among persons of the same race, even among Anglo-Saxons, ranging by imperceptible gradations from the fair blond to the swarthy brunette, the latter being darker than many of the lighter hued persons of the brown or yellow races. Hence to adopt the color test alone would result in a confused overlapping of races and a gradual merging of one into the other, without any practical line of separation.

... The determination that the words "white person" are synonymous with the words "a person of the Caucasian race" simplifies the problem, although it does not entirely dispose of it. Controversies have arisen and will no doubt arise again in respect of the proper classification of individuals in border line cases. The effect of the conclusion that the words "white person” mean a Caucasian is not to establish a sharp line of demarcation between those who are entitled and those who are not entitled to naturalization, but rather a zone of more or less debatable ground outside of which, upon the one hand, are those clearly eligible, and outside of which, upon the other hand, are those clearly ineligible for citizenship. Individual cases falling within this zone must be determined as they arise from time to time by what this court has called, in another connection (Davidson v. New Orleans, 96 U. S. 97, 104, 24 L. ed. 616, 619), "the gradual process of judicial inclusion and exclusion.” The appellant in the case now under consideration, however, is clearly of a race which is not Caucasian, and therefore belongs entirely outside the zone on the negative side. A large number of the Federal and state courts have so decided, and we find no reported case definitely to the contrary. These decisions are sustained by numerous scientific authorities, which we do not deem it necessary to review. We think these decisions are right, and so hold.

The briefs filed on behalf of appellant refer in complimentary terms to the culture and enlightenment of the Japanese people, and with this estimate we have no reason to disagree; but these are matters which cannot enter into our consideration of the questions here at issue. We have no function in the matter other than to ascertain the will of Congress and declare it. Of course, there is not implied-either in the legislation or in our interpretation of it-any suggestion of individual unworthiness or racial inferiority. These considerations are in no manner involved. . . .