of subdivision (b), (d) or (e) of Section 4, 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immigrant student, and if any such institution of learning fails to make such reports promptly the approval shall be withdrawn."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 4, above quoted. It will thus be 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 co-operated 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 leaving it to international arrangements." It is not understood that this 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 control immigration to 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 labourers 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 labour immigration, and will be continued, it may be added, so long as the condition of things calls for such continuation. 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 labour 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. 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 a 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 co-operating to this end; the treaty to be made terminable upon six months' 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 18 (c), to which you have referred, shall take effect on July 1, 1924. Inasmuch as the abstention on the part of the United States from such an exercise of its right of statutory control over immigration was the condition upon which was predicated the undertaking of the Japanese Government contained in the Gentlemen's Agreement of 1907-08 with respect to the regulation of the emigration of laborers to the United States, I feel constrained to advise you that this Government can not but acquiesce in the view that the Government of Japan is to be considered released, as from the date upon which Section 13 (c) of the Immigration Act comes into force, from further obligation by virtue of that understanding. In saying this, I desire once more to emphasize the appreciation on the part of this Government of the voluntary co-operation of your Government in carrying out the Gentlemen's Agreement and to express the conviction that the recognition of the right of each Government to legislate in control of immigration should not derogate in any degree from the mutual goodwill and cordial friendship which have always characterized the relations of the two countries. Accept, Excellency, the renewed assurances of my highest consideration. (Signed) CHARLES E. HUGHES. WHAT THE PROTOCOL DOES Bemis Professor of International Law, Harvard Law School TEXT OF THE PROTOCOL RESOLUTIONS OF THE ASSEMBLY GENERAL REPORT OF M. POLITIS AND Published by WORLD PEACE FOUNDATION 40 Mt. Vernon Street, Boston Price, 5 cents per number Double number, 10 cents |