because it deprives Porterfield of the right to enter into contracts for the leasing of his realty, and deprives Mizuno of his liberty and property by debarring him from entering into a contract for the purpose of earning a livelihood in a lawful occupation. This case is similar to Terrace v. Thompson, supra. In that case the grounds upon which the Washington Alien Land Law was attacked included those on which the California act is assailed in this case. There the prohibited class was made up of aliens who had not in good faith declared intention to become citizens. The class necessarily includes all ineligible aliens, and, in addition thereto, all eligible aliens who had failed so to declare. In the case now before us the prohibited class includes ineligible aliens only. In the matter of classification, the states have wide discretion. Each has its own problems, depending on circumstances existing there. It is not always practical or desirable that legislation shall be the same in different states. We cannot say that the failure of the California legislature to extend the prohibited class so as to include eligible aliens who have failed to declare their intention to become citizens of the United States was arbitrary or unreasonable. . . . Our decision in Terrace v. Thompson, supra, controls the decision of all questions raised here. The order of the District Court is affirmed. . . . ... 4. ASAKURA v. CITY OF SEATtle' Decided May 26, 1924 In this case the Supreme Court ruled that a municipal ordinance of Seattle, Washington, denying a license for the transaction of pawnbrokers' business to other than a citizen of the United States violates the treaty with Japan, providing that the subjects of each of the high contracting parties shall have liberty to carry on trade and generally to do anything incident to or necessary for trade upon the same terms as native subjects. The Court said that the treaty-making power extends to all proper subjects of negotiation between our government and foreign nations and that treaties are to be construed in a broad and liberal spirit. 168 (L. ed.) Supreme Court Advance Opinions, 577. APPENDIX VI SECRETARY HUGHES' PROTEST AGAINST EXCLUSION MY DEAR MR. JOHNSON: THE SECRETARY OF STATE, WASHINGTON, February 8, 1924 ... It is hardly necessary for me to say that I am in favor of suitable restrictions upon immigration. The questions which especially concern the Department of State in relation to the international effects of the proposed measure are these: (1) The question of treaty obligations; (2) the provision excluding Japanese; (3) the establishment of the quotas upon the basis of the census of 1890. First treaties.-According to the terms of the proposed measure "immigrant" is defined (sec. 3) as “any alien departing from any place outside the United States destined for the United States, except (1) a government official, his family, attendants, servants, and employees; (2) an alien visiting the United States 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 contiguous territory; and (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." The result is that under this definition of "immigrant" all aliens are subject to the restrictions of the proposed measure unless they fall within the stated exceptions. The question at once arises whether there would be aliens not falling within these exceptions who would be entitled to be admitted under our treaties. Article I of the treaty between the United States and Japan, concluded in 1911, provides: The citizens or subjects of each of the high contracting parties shall have liberty to enter, travel, and reside in the territories of the other to carry on trade, wholesale and retail, to own or lease and occupy houses, manufactories, warehouses and shops, to employ agents of their choice, to lease land for residential and commercial purposes, and generally to do anything incident to or necessary for trade upon the same terms as native citizens or subjects, submitting themselves to the laws and regulations there established. There appears to be no such exception in the proposed measure as that contained in subdivision (5) of paragraph (a) of section 2 of the quota act of 1921, and hence the proposed restrictions would apply to Japan not simply in relation to laborers or other classes falling outside of our treaty but with respect to those who come directly within the provisions of our treaty as above set forth. Reference may also be made to our treaties with Great Britain of 1815, with Denmark of 1826, with Norway of 1827, with Italy of 1871, and with Spain of 1902. (See Malloy's Treaties, Conventions, etc.) In view of the provisions of section 4 (c) I have omitted reference to clauses similar to that above quoted in our treaties with Latin-American countries. In my opinion the restrictions of the proposed measure, in view of their application under the definition of “immigrant,” are in conflict with treaty provisions. The exception in subdivision (2) of section 3 with respect to aliens visiting the United States "temporarily for business or pleasure" would not meet the treaty requirements to which I have referred, for this phrase would seem to indicate a stay more temporary than that permitted by these provisions, and the right established by a treaty can not be cut down without a violation of the treaty so long as it is maintained in force. Accordingly, I take the liberty of suggesting that there be included in section 3 of the proposed measure an additional exception to read as follows: "an alien entitled to enter the United States under the provisions of a treaty." I should add that the persons entitled to enter and reside here under the terms of our treaties for the purposes of trade and commerce are not those against whom immigration restrictions are deemed to be necessary. Second.-Section 12 (b) provides as follows: No alien ineligible to citizenship shall be admitted to the United States unless such alien (1) is admissible as a nonquota immigrant under the provisions of subdivisions (b), (d), or (g) of section 4; or (2) is the wife or unmarried child under eighteen years of age of an immigrant admissible under such subdivision (d), and is accompanying or following to join him; or (3) is not an immigrant as defined in section 3. In determining the effect of this provision it should be noted that subdivision (b) of section 4 relates to "an immigrant previously lawfully admitted to the United States who is returning from a temporary visit abroad." Subdivision (d) of the same section relates to immigrants who seek to enter the United States solely to carry on "the vocation of minister of any religious denomination, or professor of a college, academy, seminary, or university." And subdivision (g) of the same section relates to immigrants who are bona fide students seeking to enter the United States for the purpose of study at an accredited college, academy, seminary, or university approved by the Secretary of Labor. It is apparent that section 12, subdivision (b), taken in connection with sections 3 and 4 of the proposed measure, operates to exclude Japa nese. This is inconsistent with the provision of the treaty of 1911 above mentioned, and with respect to those defined as immigrants who do not come within the treaty, it establishes a statutory exclusion. So far as the latter class is concerned, the question presented is one of policy. There can be no question that such a statutory exclusion will be deeply resented by the Japanese people. It would be idle to insist that the provision is not aimed at the Japanese, for the proposed measure (sec. 25) continues in force the existing legislation regulating Chinese immigration and the barred-zone provisions of our immigration laws which prohibit immigration from certain other portions of Asia. The practical effect of section 12 (b) is to single out Japanese immigrants for exclusion. The Japanese are a sensitive people, and unquestionably would regard such a legislative enactment as fixing a stigma upon them. I regret to be compelled to say that I believe such legislative action would largely undo the work of the Washington Conference on Limitation of Armament, which so greatly improved our relations with Japan. The manifestation of American interest and generosity in providing relief to the sufferers from the recent earthquake disaster in Japan would not avail to diminish the resentment which would follow the enactment of such a measure, as this enactment would be regarded as an insult not to be palliated by any act of charity. It is useless to argue whether or not such a feeling would be justified; it is quite sufficient to say that it would exist. It has already been manifested in the discussions in Japan with respect to the pendency of this measure, and no amount of argument can avail to remove it. The question is thus presented whether it is worth while thus to affront a friendly nation with whom we have established most cordial relations and what gain there would be from such action. Permit me to suggest that the legislation would seem to be quite unnecessary even for the purpose for which it is devised. It is to be noted that if the provision of subdivision (b) of section 12 were eliminated and the quota provided in section 10 of the proposed measure were to be applied to Japan, there would be a total of only 246 Japanese immigrants entitled to enter under the quota as thus determined. That is to say, this would be the number equal to 2 per cent of the number of residents in the United States as determined by the census of 1890 plus 200. There would remain, of course, the nonquota immigrants, but if it could possibly be regarded that the provisions of section 4 would unduly enlarge the number admitted, these provisions could be modified without involving a statutory discrimination aimed at the Japanese. We now have an understanding with the Japanese Government whereby Japan undertakes to prevent the immigration of laborers from Japan to the United States except the parents, wives, and children of those already resident here. Further more, the Japanese Government, incidentally to this undertaking, now regulates immigration to territory contiguous to the United States with the object of preventing the departure from Japan of persons who are likely to obtain surreptitious entry into this country. If the provision of section 12 (b) were to be deleted and the provision in regard to certificates for immigrants to this country were to become applicable to Japan, we should with the present understanding with the Japanese Government be in a position to obtain active co-operation by the Japanese authorities in the granting of passports and immigration certificates. We could in addition be assured that the Japanese Government would give its assistance in scrutinizing and regulating immigration from Japan to American territory contiguous to the United States. It is believed that such an arrangement involving a double control over the Japanese quota of less than 250 a year would accomplish a much more effective regulation of unassimilable and undesirable classes of Japanese immigrants than it would be practicable for us, with our long land frontier lines on both north and south, to accomplish by attempting to establish a general bar against Japanese subjects to the loss of cooperation with the Japanese Government in controlling the movement of their people to the United States and adjacent territories. I am unable to perceive that the exclusion provision is necessary and I must strongly urge upon you the advisability, in the interest of our international relations, of eliminating it. The Japanese Government has already brought the matter to the attention of the Department of State and there is the deepest interest in the attitude of Congress with respect to this subject. ... (Signed) CHARLES E. HUGHES.1 'Printed in H. Rept. 350, cited. |