150.949/23
Memorandum by Mr. Ransford S. Miller of the Division of Far Eastern Affairs
Mr. Midzusawa, of the Japanese Embassy, called at the Department on June 15 and again on June 17 to talk over informally with Mr. Cumming2 and Mr. Miller some of the difficulties relating to the admission of treaty (trade) Japanese subjects.
Mr. Midzusawa exhibited, at the first interview on June 15, a considerable number of clippings taken from a Japanese newspaper published in Japanese in San Francisco, in which the Ambassador and the Embassy were severely criticized for neglecting to protect the rights of Japanese subjects in the matter of immigration, and copies in full of discussions of the same subject in the late session of the Japanese Diet. Mr. Midzusawa intimated that the Embassy did not take these criticisms too seriously but at the same time it was a matter which could not be ignored, especially in view of the interest being taken in the matter by the Japanese Diet. He stated further that the Japanese residing on the west coast did not fail to take advantage of any opportunity presented by the visit of any member of the Diet to state their grievances and to enlist the aid of such members.
Mr. Midzusawa then reviewed provisions of the Treaty of 19113 which gave to Japanese subjects the right to “enter and reside in the territories of the other to carry on trade”, and to the provisions of the [Page 1057] Immigration Act of 19244 which (Section 3 (6)) gave effect to the above Treaty provision. He then referred to the decision in the Circuit Court of Appeals, Ninth Circuit, (California) relating to the Kumanomido case5 in which the meaning of the word “trade” was given a very liberal interpretation. It appeared to Mr. Midzusawa therefore that the Consular Regulations which limit the application of Section 3 (6) of the Act of 1924 to such aliens as were engaged in international trade were inconsistent with the terms of the Treaty as interpreted by the above Court decision.
Mr. Midzusawa stated that this condition of affairs was bearing hardly upon a number of Japanese merchants who came to the United States prior to 1924 and were now engaged in local trade on the west coast, a number of whom were separated from their wives and children who had either remained in, or had returned to, Japan for family reasons. Mr. Midzusawa contrasted the treatment which was being given to Japanese merchants of this class with the treatment which he understood was being accorded to Chinese merchants under very similar conditions; and he felt that, in view of the Court’s decision in the Kumanomido case with respect to the meaning of the Treaty, the Japanese merchants in question were not only being hardly treated but were also being discriminated against. He also referred to the obvious discrimination in this respect under the “Bingham Bill” which specifically entitled Chinese merchants, born in the United States, to have their wives join them in the United States.
It was pointed out to Mr. Midzusawa that in the interpretation of the Treaty provision to which he had referred the force of the preamble to that Treaty,—from which it appeared that the Treaty related to “the rules which are hereafter to govern the commercial intercourse between their respective countries”—, should not be overlooked; that with regard to the Kumanomido decision the Department did not consider that this decision was conclusive, in that it did not definitely decide the interpretation of the term “trade”; that the facts in that case were not favorable to a clear decision on this point and that, moreover, being the decision only of a Circuit Court, it was not generally applicable as would be a decision of the Supreme Court.
With reference to the treatment being accorded Chinese merchants, some of the statements advanced by Mr. Midzusawa were questioned as differing from the facts as known to the Department; he was told, moreover, that the procedure with respect to Chinese merchants was based upon a series of court decisions relating to the provisions of our treaties with China, and that, therefore, the procedure adopted in regard to Chinese merchants might naturally differ in certain respects [Page 1058] from that accorded to the nationals of other countries under other treaty provisions and court decisions.
In the second interview, on June 17, Mr. Midzusawa reviewed the points discussed in the previous conversation and stressed the point that the Consular Regulations with respect to the admission of Japanese trades-people appeared to be inconsistent with the provisions of the Treaty on the subject as well as with the court decisions in the Kumanomido and other cases and to the actual practice with reference to Chinese merchants. He stated that there were two classes of tradespeople affected, namely, residents in the United States who had entered prior to 1924, who were engaged in local trade in the United States and were separated from their families by virtue of the Department’s interpretation of the Treaty provisions; and secondly, other tradespeople who had not been in the United States but who might wish to come but were unable to secure consular visas for that purpose. Of the two classes above mentioned Mr. Midzusawa intimated that he was more concerned about the first. He repeated that he thought the Consular Regulations and practice should be revised to conform with the interpretation of the Treaty as given by the courts and with the procedure regarding Chinese merchants.
The status of the question as viewed by the Department was again reviewed for Mr. Midzusawa’s benefit and he was given to understand that no revision of the Consular Regulations was at present contemplated by the Department. It was suggested that, rather than to continue a discussion of the question on general principles, which apparently would only lead to an impasse, a more practical way of getting at the merits of the situation would be to take up informally the examination of individual concrete cases in an attempt to see if there was any way out of the difficulty, in individual cases, by administrative measures under the Regulations as they now stand. He was informed that as a matter of fact the interpretation of the Regulations given by the American consular officers in Japan appeared to be more than usually liberal in some respects as was evidenced by the case of the twenty-five Japanese “merchants” who came to the United States in the spring of last year, all but three of whom were unable to establish their right to enter the United States, and by the fact that according to the statistics of the Deparment of Labor a very large proportion of those Japanese who had been admitted at the ports of Seattle, San Francisco and Los Angeles during the years 1927–1928 and 1928–1929 under bond as temporary visitors had forfeited their bonds and remained in the United States.
Mr. Midzusawa concurred in the above suggestion and stated that he had on hand data relating to several such individual cases which he would be glad to submit and talk over at some other time.
- Hugh S. Cumming, Jr., of the Visa Division.↩
- Foreign Relations, 1911, p. 315.↩
- Approved May 26, 1924; 43 Stat. 153.↩
- Shizuko Kumanomido v. Nagle, April 7, 1930, 40 F. (2d) 42.↩