U.S. FIRM ON JAPANESE BAN

ANSWER ON EXCLUSION IS MADE PUBLIC

Washington Regards Incident as Closed by Hughes' Note Denying Violation of Treaties With Japan.

By Associated Press.

WASHINGTON, Thursday, June 19. -- The American reply to the Japanese protest against the exclusion provision of the immigration act was made public here last night by the State Department simultaneously with its publication through the foreign office in Tokyo. It is cordial and friendly in tone, but at the same time makes it clear that the exclusion provision in no way trespasses upon any written or implied obligation on the part of the United States.

Secretary Hughes points out that Congress was wholly within its right in the enactment of the provision and that the action taken 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."

Becomes Closed Incident.

The construction generally placed upon the American note is that it conclusively demonstrates the view of the Washington government that the exclusion law is a closed incident and that no attempt to modify or alter its terms is to be expected.

Secretary Hughes in the note, which he prepared with utmost care, expresses pleasure over the "friendliness and candor" of the protest communication delivered to him by Ambassador Hanihara May 31.

"You may be assured of the readiness of this government to consider in the same spirit the views you have set forth," Mr. Hughes adds.

The note then analyzes the exclusion provision applicable to all aliens ineligible for citizenship as it is modified by the exceptions contained in the act and points out:

"It will 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 cooperated with the government of the United States in preventing the emigration of Japanese laborers to this country."

Japan's Cooperation Appreciated.

Appreciation of this cooperation in carrying out a "long-established policy" is expressed and the communication adds:

"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 substantial differences between the exclusion provisions and the gentlemen's agreement, the note continues, lies in what President Coolidge described in his statement at the time he signed the immigration bill as the "determination of Congress to exercise its prerogative in defining by legislation the control of immigration instead of leaving it to the 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 ad

mission of aliens and the conditions and location of their settlement within its borders," Secretary Hughes' note continues.

It is on this point, the secretary after noting that the President "would have preferred to continue the existing arrangements," with Japan with such modifications as seemed desirable, asserts:

"This government does not feel that it is limited to such an international arrangement or that by virtue of the existing understanding in the (gentlemen's agreement) part of negotiations it has conducted in the past with the Japanese government, that 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 entirely compatible with the friendly sentiments which animate our international relations, this government in the course of these negotiations always fully reversed."

The note then quotes the clause from Article II, of eh commercial treaty of 1894 with Japan which stipulated specifically the reservation of the right to control "the immigration of laborers" by law. It adds that when the new commercial treaty of 1911 was under negotiation this clause was eliminated at the instance of the Japanese government because of the existence of the gentlemen's agreement of 1907-8, by which Japan undertook, on her own motion, to restrict such emigration to the United States.

Reference also is made to memoranda exchanged between the Japanese embassy and the State Department dated October 19, 1910, and January 23, 1911, in which the State Department acquiesced in the Japanese suggestion for elimination of the clause under discussion but with the stipulation that "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, the embassy replied in a memorandum which stated that "the imperial government concurs in the understanding of the proposal relating to the question of immigration set forth in the above mentioned note of January 23, last."

Secretary Hughes' note points out that this correspondence constituted "a distinct understanding" between the two governments of the rights of each to control immigration and adds that the advisability of dealing with the question by legislative enactment "necessarily remains within the legislative power of this government to determine, a power which Congress now has exercised."

The note advises the Japanese government that since the exclusion provision takes effect July 1, 1924, the Washington government must consider the government must consider the government of Japan as released from any further obligation under the gentlemen's agreement as from that date. It concludes with the assertion that recognition of the right of each government to legislate in control of immigration "should not derogate in any degree from the mutual good will and cordial friendship which have always characterized the relations of the two countries."

Full Text of Note.

The full text of the American communication follows:

Department of State, Washington,
June 16, 1924.

His Excellency, Mr. Masanao Hanihara, Japanese Ambassador, Excellency:

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 aliens ineligible to citizenship. It establishes certain exceptions and to these classes the exclusion provision does not apply, to wit.

Exempted Under Law.

Those who are not immigrants as defined in Section 3 of the act, that is (1) a government official, his family, attendants, servants and employes, (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 as 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 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 previously lawfully admitted 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 old and who seeks to enter the United States solely for the purpose of studying 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."

Wives and Children Included.

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 cooperated 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 conditions which has 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 domain," 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 find 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 sentiment which animates 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 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.

Japanese Embassy Memorandum.

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 laborers to the United States have, it is believed, proved entirely satisfactory and far more effective than any prohibition of immigration would have been. These measures of restraint were undertaken voluntarily in order to prevent any dispute or issue between the two countries on the subject of labor 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 misunderstanding 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 desires 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.

Difficulties of United States.

"in expressing that desire they are not unmindful of the difficulties under which the United States labors 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 is memorandum sent to the Japanese ambassador on January 23, 1924, 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 cooperating to this end; the treaty to be made terminable upon six months' notice.

Formal Declaration Asked.

"It is further understood that the Japanese government will at the time of signature of the treaty made 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 rights 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 assessed 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 rights 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.

At 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 13 (C), to which you have referred, shall take effect on July 1, 1924. Inasmuch as the abstentation 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 predicted the undertaking of the Japanese government contained in the gentlemen's agreement of 1907-8 with respect to the regulation or the emigration of laborers to the United States. I feel constrained to advise you that this government cannot 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 undertaking.

In saying this, I desire once more to emphasize the appreciation on the part of the government of the voluntary cooperation 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 good will and cordial friendship which have always characterized the relations of the two countries.

Accept, excellency, the renewed assured of my highest consideration.

-- CHARLES E. HUGHES.