Mr. Hay to Mr. Takahira.
Washington , November 26, 1901 .
Sir: Referring to your note of June 13 last in relation to certain quarantine measures of San Francisco and Colorado, and to the explanatory statement in connection therewith which you handed to me on the 14th instant, I observe that, in view of the explanations heretofore furnished by the Department, there remains apparently only one point on which you ask further satisfactory assurances, namely: That some action may be taken to protect Japanese subjects against the recurrence of discriminatory quarantine measures. This assurance I am happy to be able to give you; not, indeed, in the precise form in which it is requested, but in a way which will substantially and effectually accomplish the end in view.
It is in the nature of things impossible to prevent by Federal legislation the enactment of improvident and unconstitutional laws by local authorities, whether State or municipal. But it is entirely feasible to afford prompt and complete redress against such regulations whenever [Page 378] their enforcement is sought to the detriment of personal rights. The individual affected may at once avail himself of the writ of habeas corpus before the Federal courts and obtain his deliverance from any illegal imprisonment, confinement, or restraint. He may also avail himself in such cases of the writ of injunction to prevent the enforcement of such illegal regulations. This was done in this very affair in the case of Wong Wai v. Williamson (103 Fed. Rep., 1); and the act of Congress, which was passed in consequence of the exigencies of the McLeod case, was adopted, not with a view to prevent the passage of illegal local legislation and regulations, but to nullify their effects by empowering the Federal courts, on proper application, to deliver and discharge from the operation of such laws all persons injuriously affected by them, thereby nullifying them for all practical purposes. The remedy thus afforded was and is equally applicable in all cases where quarantine regulations restrain personal liberty (including freedom from interference with the right of personal locomotion or the exercise of any restraint upon the person) in breach of constitutional or treaty rights.
The remedies already afforded are, therefore, complete; and since it is physically impossible by any act of legislation to prevent at all times and in all places illegal action of local authorities, the demands of civil justice and of national good faith are reasonably met when ample and speedy remedies for the redress of such grievances or of wrongs of any kind are afforded by the laws.
In case, however, of the passage of local regulations alleged to be in violation of a treaty, the Department would, if the same would be brought by you to its attention, cause the matter to be investigated, and if proper would request the Attorney-General to cooperate in taking the necessary legal steps to enforce the due observance of treaty obligations.
Accept, etc.,