The Secretary of State to the Chairman of the Committee on Immigration and Naturalization of the House of Representatives ( Johnson )

My Dear Mr. Johnson: I have received your letter of January 2879 enclosing copies of “Committee Print No. 1, Selective Immigration Act,” requesting any recommendations the Department of State may desire to submit with respect to this measure. I have also received a copy of H. R. 6540 introduced by you on February 1, 1924 and my comments will be made with respect to it.

I fully appreciate the importance of removing present hardships by the issue of immigration certificates to those who would normally come under immigration laws. I endorse this policy. Assuming that treaties were not violated and immigration certificates were demanded of those who normally would be classed as immigrants, I should not object to the giving of authority to Consular Officers to issue immigration certificates, provided, of course, that Consular Offices were properly equipped with the requisite staff to carry out the provisions of the law. It seems to me that the granting of such immigration certificates might be treated as so analogous to the granting of visas as properly to come within a broad description of consular functions. In the absence of the violation of any treaty, I assume that the admission of immigrants to this country could be conditioned upon their receiving an immigration certificate in the manner required by our laws; although, of course, if independent machinery through special immigration officials were sought to be set up in foreign countries such officials would have to be properly accredited to the foreign governments and could not function with [Page 215] out the consent of the foreign State in whose territory they would act.

It is hardly necessary for me to say that I am in favor of suitable restrictions upon immigration. The questions which especially concern the Department of State in relation to the international effects of the proposed measure are these: (1) the question of treaty obligations; (2) the provision excluding Japanese; (3) the establishment of the quotas upon the basis of the Census of 1890.

First. Treaties.—According to the terms of the proposed measure “immigrant” is defined (Sec. 3) as “any alien departing from any place outside the United States destined for the United States, except (1) a government official, his family, attendants, servants, and employees, (2) an alien visiting the United States 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, and (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.”

The result is that under this definition of “immigrant” all aliens are subject to the restrictions of the proposed measure unless they fall within the stated exceptions. The question at once arises whether there would be aliens, not falling within these exceptions who would be entitled to be admitted under our treaties.

Article I of the Treaty between the United States and Japan, concluded in 1911,80 provides:

“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, to own or lease and occupy houses, manufactories, warehouses and shops, to employ agents of their choice, to lease land for residential and commercial purposes, and generally to do anything incident to or necessary for trade upon the same terms as native citizens or subjects, submitting themselves to the laws and regulations there established.”

There appears to be no such exception in the proposed measure as that contained in subdivision (5) of paragraph (a) of Section 2 of the quota act of 1921,81 and hence the proposed restrictions would apply to Japan not simply in relation to laborers or other classes falling outside of our treaty but with respect to those who come directly within the provisions of our treaty as above set forth.

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Reference may also be made to our treaties with Great Britain of 1815, with Denmark of 1826, with Norway of 1827, with Italy of 1871, and with Spain of 1902. (See Malloy’s Treaties, Conventions, etc.) In view of the provisions of Section 4 (c) I have omitted reference to clauses, similar to that above quoted, in our treaties with Latin American countries.

In my opinion the restrictions of the proposed measure, in view of their application under the definition of “immigrant”, are in conflict with treaty provisions. The exception in subdivision (2) of Section 3 with respect to aliens visiting the United States “temporarily for business or pleasure” would not meet the treaty requirements to which I have referred, for this phrase would seem to indicate a stay more temporary than that permitted by these provisions and the right established by a treaty can not be cut down without a violation of the treaty so long as it is maintained in force. Accordingly, I take the liberty of suggesting that there be included in Section 3 of the proposed measure an additional exception to read as follows:

“an alien entitled to enter the United States under the provisions of a treaty.”

I should add that the persons entitled to enter and reside here under the terms of our treaties for the purposes of trade and commerce are not those against whom immigration restrictions are deemed to be necessary.

Second.—Section 12 (b) provides as follows:

“No alien ineligible to citizenship shall be admitted to the United States unless such alien (1) is admissible as a non-quota immigrant under the provisions of sub-divisions (b), (d) or (g) of section 4, or (2) is the wife or unmarried child under 18 years of age of an immigrant admissible under such sub-division (d), and is accompanying or following to join him, or (3) is not an immigrant as defined in section 3.”

In determining the effect of this provision it should be noted that sub-division (b) of Section 4 relates to “an immigrant previously lawfully admitted to the United States, who is returning from a temporary visit abroad.” Sub-division (d) of the same section relates to immigrants who seek to enter the United States solely to carry on “the vocation of minister of any religious denomination, or professor of a college, academy, seminary, or university.” And sub-division (g) of the same section relates to immigrants who are bona fide students seeking to enter the United States for the purpose of study at an accredited college, academy, seminary, or university approved by the Secretary of Labor.

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It is apparent that Section 12, sub-division (b) taken in connection with Sections 3 and 4 of the proposed measure, operates to exclude Japanese. This is inconsistent with the provision of the Treaty of 1911 above-mentioned, and, with respect to those denned as immigrants who do not come within the treaty, it establishes a statutory exclusion.

So far as the latter class is concerned, the question presented is one of policy. There can be no question that such a statutory exclusion will be deeply resented by the Japanese people. It would be idle to insist that the provision is not aimed at the Japanese, for the proposed measure (Sec. 25) continues in force the existing legislation regulating Chinese immigration and the Barred Zone provisions of our immigration laws which prohibit immigration from certain other portions of Asia. The practical effect of Section 12 (b) is to single out Japanese immigrants for exclusion. The Japanese are a sensitive people and unquestionably would regard such a legislative enactment as fixing a stigma upon them. I regret to be compelled to say that I believe such legislative action would largely undo the work of the Washington Conference on Limitation of Armament, which so greatly improved our relations with Japan. The manifestation of American interest and generosity in providing relief to the sufferers from the recent earthquake disaster in Japan would not avail to diminish the resentment which would follow the enactment of such a measure, as this enactment would be regarded as an insult not to be palliated by any act of charity. It is useless to argue whether or not such a feeling would be justified; it is quite sufficient to say that it would exist. It has already been manifested in the discussions in Japan with respect to the pendency of this measure and no amount of argument can avail to remove it.

The question is thus presented whether it is worth while thus to affront a friendly nation with whom we have established most cordial relations and what gain there would be from such action. Permit me to suggest that the legislation would seem to be quite unnecessary even for the purpose for which it is devised. It is to be noted that if the provision of subdivision (b) of Section 12 were eliminated, and the quota provided in Section 10 of the proposed measure were to be applied to Japan, there would be a total of only 246 Japanese immigrants entitled to enter under the quota as thus determined. That is to say, this would be the number equal to two per cent, of the number of residents in the United States as determined by the Census of 1890 plus 200. There would remain, of course, the non-quota immigrants, but if it could possibly be regarded that the provisions of Section 4 would unduly enlarge the number admitted, these provisions could be modified without involving a statutory discrimination aimed at the Japanese. We now have an understanding [Page 218] with the Japanese Government whereby Japan undertakes to prevent the immigration of laborers from Japan to the United States except the parents, wives and children of those already resident here. Furthermore, the Japanese Government, incidentally to this undertaking, now regulates immigration to territory contiguous to the United States with the object of preventing the departure from Japan of persons who are likely to obtain surreptitious entry into this country. If the provision of Section 12 (b) were to be deleted and the provision in regard to certificates for immigrants to this country were to become applicable to Japan, we should with the present understanding with the Japanese Government be in a position to obtain active cooperation by the Japanese authorities in the granting of passport and immigration certificates. We could in addition be assured that the Japanese Government would give its assistance in scrutinizing and regulating immigration from Japan to American territory contiguous to the United States. It is believed that such an arrangement involving a double control over the Japanese quota of less than 250 a year would accomplish a much more effective regulation of unassimilable and undesirable classes of Japanese immigrants than it would be practicable for us, with our long land frontier lines on both North and South to accomplish by attempting to establish a general bar against Japanese subjects to the loss of cooperation with the Japanese Government in controlling the movement of their I people to the United States and adjacent territories.

I am unable to perceive that the exclusion provision is necessary and I must strongly urge upon you the advisability, in the interest of our international relations, of eliminating it. The Japanese Government has already brought the matter to the attention of the Department of State and there is the deepest interest in the attitude of Congress with respect to this subject.

Third.—There remains the question of the adoption of the Census of 1890 as the basis of quota restriction. This has evoked representations from European countries, and especially from Italy, which regards the choice of such a basis as a discrimination against her. On December 31, 1923 I communicated to you a memorandum presented to the Department of State by the Italian Ambassador82 and, as I have no doubt that your committee will examine these representations attentively, I shall not attempt to add any further recital of facts. In appropriately providing for a restriction of immigration, the importance of which I fully recognize, I hope that it will be possible to find some basis which will be proof against the charge of discrimination.

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In addition to the questions considered above, permit me to direct your attention to the following:

Section 4 (c) of the proposed measure does not appear to provide for immigrants from British Honduras and British, French and Dutch Guiana as they would seem not to be “countries of Central or South America” within the meaning of the bill (See sec. 11 (a)). It is also not clear from the provisions of Section 4 (c) that it would provide for Haiti, the Dominican Republic, the British, French and Dutch islands of the West Indies, St. Pierre and Miquelon, and Greenland.

It is also to be noted that Section 4 (c) applies only to residents of the countries named and makes no provision for persons born in these countries, and citizens of them, but residing abroad. In view of the fact that under Section 11 (a), for the purposes of the Act, nationality is to be determined by country of birth, it would appear that such persons would still be referred to the country of birth and yet could not come in as non-quota immigrants. This would apparently make necessary the establishing of quotas to cover such classes, but it is not clear that this is the intention of the measure, or, on the other hand, that there is any reason why such persons should not be able to come in as “non-quota immigrants” as well as those who are described in Section 4 (c). I therefore suggest that you consider amending Section 4 (c) to read as follows:

“(c) An immigrant who was born in or has resided continuously for at least 10 years immediately preceding the time of his application for admission to the United States in the Dominion of Canada, Newfoundland, the Republics of Mexico, Cuba, and Haiti, the Dominican Republic, countries of Central America and of South America, colonies and dependencies of European countries in Central America, South America, the West Indies, or other islands adjacent to the American continents, and his wife, and his unmarried children under 18 years of age, if accompanying or following to join him.”

I desire to invite your attention to the fact that under the provisions of Section 6 (f) the only copy of the application for an immigration certificate is attached to the immigration certificate, and would therefore be delivered to the alien with the immigration certificate and surrendered to the immigration officer at the port of arrival in the United States. This would leave the Government without a copy of the application and without any record of the facts upon which the immigration certificate was issued. It would seem that difficulties might arise on account of lost certificates or that copies of the applications might be desired for use in prosecutions where false statements were made, or where the certificate was altered while in the immigrant’s possession. I therefore believe [Page 220] that it would be desirable to provide that a copy of the application for an immigration certificate should be kept on file in the Consular Office.

Section 8 (e) provides that if the Commissioner General finds the fact stated in the petition to be true and the immigrant is entitled to admission as a non-quota immigrant, he shall, through the Secretary of State, authorize the Consular Officer to issue an immigration certificate. I consider it important that Consular Officers shall continue to be under the direction and control of the Department of State and I assume that it is not the intention to divert this control which is important in order that there may be retained for such Officers the recognition which they should receive from the foreign governments concerned. I suggest the advisability, in order to avoid any possible question, of amending Section 8 (e) by striking out the words “he shall, through the Secretary of State, authorize the Consular Officer with whom the application for the immigration certificate has been filed to issue the immigration certificate” and by inserting in lieu thereof the following:

“he shall inform the Secretary of State of his decision and the Secretary of State shall then authorize the Consular Officer with whom the application for the immigration certificate has been filed to issue the immigration certificate.”

With regard to Section 11 (a), I may state that some question has arisen under the present Quota Act whether the words “treating as separate countries the colonies or dependencies for which separate enumeration was made in the United States census” were sufficient to authorize the granting of a separate quota to Australia, which is a self-governing dominion under the British Empire. In order that this doubt may be removed, I suggest that in line 17, page 14, after the word “countries”, the words “the self-governing dominions,” be inserted.

With respect to Section 11 (a) (1) which provides that the nationality of a minor child accompanied by its alien parent not born in the United States shall be determined by the country of birth of such parent, if such parent is entitled to an immigration certificate, I may observe that in case the minor child is accompanied by both parents it is not clear whether the nationality of the minor child shall be determined by the place of birth of the father or of the mother. I suggest that the following provision be added:

“If the minor child is accompanied by both parents its nationality shall be determined by the country of birth of the father.”

With respect to Section 11 (a) (2), I desire to invite attention to the fact that apparently this Section creates a class of immigration [Page 221] certificates that are not to be counted as quota certificates and are also not issued as non-quota certificates. The issuance of such certificates may cause difficulties in the regulation of the number of immigration certificates to be issued by Consular Officers. I believe that a more definite provision on this subject should be included in the Act.

Section 11 (b) incorporates provisions contained in the present Quota Act. In administering these provisions certain difficulties have arisen which, I believe, it would be advisable to remedy in the proposed legislation, as follows:

Section 11 (b) (1) refers to changes in political boundaries in foreign countries occurring subsequent to 1890 and resulting in the creation of new countries, the governments of which are recognized by the United States. This provision does not deal with the establishment of a new self-governing dominion within the British Empire since 1890. Under the provisions of the present law consideration was given to the matter of establishing a separate quota for the Irish Free State which is a new self-governing dominion. It appeared, however, that such a separate quota was not warranted by the terms of the law. For administrative reasons it would be helpful if separate quotas could be given the self-governing dominions. Reference is made in this connection to the fact that the census of 1890 does not contain a separate enumeration for New Zealand or the Union of South Africa. It is therefore believed that the following amendment should be added after the word “States” in line 18, page 15, the words “or in the establishment of self-governing dominions”.

I may also observe that questions have arisen under the provisions of the present law, which are incorporated in Section 11 (b) (2) concerning the establishment of quotas covering the territories which had been transferred by the government exercising sovereignty therein in 1910 but where formal recognition of a new sovereign had not been extended by the Government of the United States. Cases of this character have arisen with respect to Palestine, Syria, Fiume, and other territories involved in settlements arising out of the World War. I believe that this situation could be dealt with by adding after Section 11 (b) (2) a new section numbered (3) to read as follows:

“in the surrender of territory by one country but the transfer of which to another country has not been recognized by the United States.”

Your attention is also invited to the fact that several small countries recognized by the United States in 1890 were not clearly given a separate enumeration in the census of 1890. A similar situation [Page 222] arose under the present Act with respect to the granting of a separate quota to San Marino which had been recognized by the United States prior to 1910. With a view to making it proper for the United States to provide for a separate quota for such countries, I suggest that the following sentence be added after the word “boundary” in line 25, page 15, of the proposed measure:

“Such officials jointly are authorized to prepare a separate statement for countries recognized by the United States before 1890, but to which a separate enumeration was not given in the census of 1890.”

With respect to Section 15 (b), it is observed that provision is made for the clearance of a vessel involved upon the deposit of an amount sufficient to cover such sums. The present law contains a similar provision, and it was construed that the foreign ship owner was obliged to deposit money and that a bond with sufficient surety could not be accepted. Such a provision, it seems, would work an undue hardship in cases where a serious question of fact was involved and the sum of money required to be deposited was very large. I therefore suggest that it would be desirable to provide that the Secretary of Labor may, in his discretion, accept a bond with sufficient sureties thereon to guarantee the payment of such sums.

The same observations apply to Section 19 (f).

With respect to Section 24, which provides that the Commissioner General shall prescribe rules and regulations for the enforcement of the provisions of the Act, so far as its administration by Consular Officers is concerned, subject to the approval of the Secretary of State, I desire to refer to my comments with respect to Section 8 (e). For the reasons there stated, I am of the opinion that the rules and regulations, so far as they relate to Consular Officers should be prescribed by the Secretary of State upon the recommendation of the Commissioner General.

I remain [etc.]

Charles E. Hughes
  1. Not printed.
  2. Foreign Relations, 1911, p. 315. For correspondence on Japanese immigration in 1924, see vol. ii, pp. 333 ff.
  3. 42 Stat. 5.
  4. Italian pro memoria of Dec. 15, 1923; printed in H. Rept. 350, 68th Cong., 1st sess., p. 15.