In pursuance of instructions from my Government, I 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 provides 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 and 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 discrimination 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 defence 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.

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.

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:

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:

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 pre-occupations 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 ratifications 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 8681 altogether, including not only immigrants of the laboring class, but also merchants, students, and other non-laborers and nonimmigrants, 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 co-operation reached after long and comprehensive discussions between the Japanese 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 than 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 maintain 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.

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

(Signed) M. HANIHARA.

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 contiguous 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 non-quota immigrants under the provisions