711.945/1078½
Memorandum by the Secretary of State of a Conversation with the Japanese Ambassador (Hanihara), May 1, 1924
Immigration. The Ambassador called attention to a statement in the report of the House Committee48 with respect to the Treaty of 1911.49 The Ambassador referred to the Secretary’s suggestion that there should be an amendment to the Immigration Bill so as to make an exception of “an alien entitled to enter the United States under the provisions of the treaty”, and to the modification of this by the House Committee as stated on pages two and three of the House Committee’s report as follows:
“An alien entitled to enter the United States solely to carry on trade under and in pursuance of the provisions of the present existing Treaty of Commerce and Navigation.”
The Ambassador said he had been instructed by his Government to take up the question with the Secretary not by way of formal written representations but to indicate the view of his Government [Page 386] that this clause was not adequate to preserve the rights accorded by the treaty. The Ambassador referred to Article 1 of the treaty and to the first clause:
“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,” etc.
The Ambassador said that in view of what had taken place at the time of the negotiation of the Treaty of 1911 his Government were of the opinion that this part of the Treaty should be read as though there were a comma after the words “in the territories of the other”, in other words that the clause gave an independent right “to enter, travel and reside” irrespective of the carrying on of trade. The Ambassador referred to the provision in Article 2 of the Treaty of 189450 providing that it should not affect the laws with regard to the immigration of laborers and to the desire of Japan that this should be suppressed in the Treaty of 1911. The Ambassador also referred to the declaration which was signed at the same time as the Treaty of 1911, stating that the Japanese Government was prepared to maintain the control which they had exercised over the emigration of laborers to the United States. The Ambassador said that in view of the negotiations it was felt that the provision of Article 1 of the Treaty must be read as though there were a comma after the words “in the territories of the other,” so that the right to enter and reside was not qualified, while on the other hand, the Japanese Government agreed to maintain its regulations to prevent the emigration to the United States of laborers.
The Secretary said that he hardly cared to discuss so important a matter as the construction of a treaty in an informal and casual way, as there was great danger of a misunderstanding; that he was prepared, on proper occasion, to state the views of this Government with regard to the interpretation of the treaty. He hoped, however, that a situation requiring such a discussion would not arise. In view of the statements made by the Ambassador, the Secretary felt that he must state in a general way the attitude of this Government in relation to the treaty, for he was bound to say that he could not agree with the construction which the Japanese Government seemed to place upon it. The Secretary said that in saying this he was not at all altering the views that he had expressed to the committees of Congress as to the policy to be pursued, but of course the Ambassador must understand that if the question of treaty obligation was brought up it would have to be discussed from a legal standpoint.
The Secretary said that he must call the attention of the Ambassador, in the first place, to the actual content of the Immigration Bill, [Page 387] to which the Ambassador had referred, as passed by the House. The exception in relation to the treaty was not the only exception; thus the Ambassador would find that in Section 3 there were excepted governmental officials and their families, etc, aliens visiting the United States as tourists or temporarily for business or pleasure, aliens in continuous transit through the United States, aliens lawfully admitted to the United States who later go in transit from one part of the United States to enter other foreign contiguous territory, and bona fide alien seamen as stated. To these provisions were added the exception of aliens entitled to enter the United States solely to carry on trade in pursuance of the provisions of a present existing Treaty of Commerce and Navigation. The Secretary read these provisions to the Ambassador and said that, taken as a whole, he could not admit that the Bill would establish any violation of treaty provisions and that he could not discuss the matter upon any such basis. The Secretary again stated that this did not affect at all his friendly attitude and his desire that the matter should be dealt with in a way that would maintain the most cordial relations between the two countries, but that if the question of treaty violation were raised it would be quite impossible for this Government to admit that its obligations were not fully met.
The Secretary then went on to say that while he did not wish to discuss at length the construction of the provision of the treaty to which the Ambassador had referred, he felt that it should be read as it stood and if it were necessary to consider the function of a comma the fact could not be overlooked that the comma was not there. The Secretary said, however, that the question was far more fundamental than that. The Secretary felt that an examination of the history of the negotiations and of the attitude of this Government made it abundantly clear that it was not at all the intention of this Government in making the Treaty of 1911 to surrender its control over immigration. This was a fundamental sovereign right and it could not be regarded as given up by implication or by anything short of explicit provisions. The Secretary said that this was true of all commercial treaties; these treaties related to intercourse between peoples. The control of immigration was essential to self-protection and commercial treaties must be construed with this in view. The Secretary called attention to the fact that the introduction of immigrants, of settlers, of those who would become a permanent part of the population of the country was a very serious matter. No nation could be regarded as having surrendered the right to control such immigration without an express provision to that effect. Such control was consistent with the regulation of intercourse or with the sort of intercourse that was incident to commercial relations. Our commercial treaties should be read in this sense. [Page 388] The Secretary said that he must again express the hope that it would not be necessary for the two countries to discuss the questions which had been raised from a standpoint of any charge of violation of treaty in the proposed Bill, as he did not believe that such a charge could properly be made.
The Ambassador thanked the Secretary for his statement and said that he understood the Secretary’s position.
The Ambassador then referred to a statement in the House Committee’s report with regard to the Japanese treatment of Chinese and Koreans which seemed to indicate that the view was held that the Japanese were guilty of inconsistency. The Ambassador said that this was based upon a misapprehension. He said that in fact the action taken by Japan had been to reduce the restrictions that had previously been maintained as to settlements and residences of foreigners rather than the reverse; in other words, the Japanese had been lifting restrictions and modifying them.
- H. Rept. 350, 68th Cong., 1st sess.↩
- Foreign Relations, 1911, p. 315.↩
- Malloy, Treaties, 1776–1909, vol. i, p. 1028.↩