Mr. Takahira to Mr. Hay.

No. 14.]

Sir: Referring to the memoranda dated respectively the 4th and 13th of last October, which passed between us in relation to the quarantine measures enforced in San Francisco and Colorado last year, I have the honor to state that I communicated the same to His Imperial Majesty’s Government, and that I am now in receipt of a reply embodying its views upon the subject.

In conformity with the directions of his excellency the minister for foreign affairs I beg to transmit herewith for your information a copy of the instruction in question.

Accept, etc.,

K. Takahira.

Sir: I have to acknowledge receipt of your dispatch of the 17th day of the 10th month of the 33d year of Meiji, inclosing copies of the memoranda dated respectively the 4th and 13th October last, which were exchanged between your legation and the Department of State in regard to the measures of quarantine taken against Japanese subjects by the city of San Francisco and the State of Colorado.

The position in which the correspondence now under examination has left the question is not, I regret to say, entirely satisfactory to the Imperial Government, and you are accordingly instructed to again approach the Government of the United States on the subject.

The measures which gave rise to the recent discussion established, within the circumscriptions indicated, a clear discrimination against Japanese subjects in the matter of quarantine, and it has in consequence been the contention of the Imperial Government that those measures were not only subversive of the accepted principles of international law and comity by which the equal intercourse between nations is regulated and the rights of aliens are determined, but were at variance with those express provisions of the treaty of 1894 which in reciprocity extended to Japanese subjects in all parts of the territories of the United States both national and most-favored-nation treatment in whatever relates to rights of residence and travel. In this situation the Imperial Government had entertained the hope that the Government of the United States might see their way to take such action against the persons responsible for the enforcement of the measures as could fairly be regarded as an assurance that similar discriminatory regulations would not again be put into operation.

Accordingly the announcement, contained in the memorandum of October 13, to the effect that for reasons of a purely domestic character, springing from the peculiar relations existing between the Federal and State governments, the United States were unable either to accord redress for the past grievances or to give guaranties against the recurrence of similar grievances in the future, was a source of disappointment to the Imperial Government. If, as is firmly believed, the discriminations in question were actually invasive of rights belonging to the subjects of His Imperial Majesty in virtue of a just application of the principles of the law of nations, it can hardly be said that reference to the distribution of power among the various departments of national authority constitutes a satisfactory answer to the complaint of the Imperial Government, which is based upon an alleged disregard of such international rights.

As the Imperial Government in the present case are on the one hand denied the opportunity of seeking adequate redress from the subordinate administrative units which go to make up the supreme Government of the United States, so they are on the other justified in looking to the Federal Government for the fulfillment of the [Page 376] sum of the nation’s international duties and obligations. And in advancing as applicable to this question the proposition that in the presence of international rights and duties opposing municipal rules and arrangements are silent, I find myself merely restating a principle of public law which the Government of the United States have, on more than one occasion, as frankly admitted on the one hand as they have strenuously and conclusively maintained on the other.

In the Cutting case it was declared by the then Secretary of State, Mr. Bayard, “that a Government can not appeal to its municipal regulations as an answer to demands for the fulfillment of international duties.” A similar rule was laid down by the United States before the Geneva Arbitration Tribunal, and in the Van Bokkelen case, while in the case of McLeod, and in other more recent cases, the Government of the United States have, with a consistency which does equal credit to their sincerity and high sense of justice, acknowledged the supremacy of the same principle.

If I have, in citing precedents, limited myself to cases in which the United States were interested, it is not because the doctrine which they illustrate is peculiar to that power, but because the Government of the United States have enunciated the rule with a clearness and precision which leave nothing to be desired.

The cases cited, especially those relating to McLeod and Cutting, seem to suggest the manner in which causes of complaint such as those now under discussion may be avoided, and the Imperial Government therefore indulge the confident hope that the Government of the United States, upon further consideration of the question in the light of what has been said, will adopt the necessary legislative measures to effectually safeguard for the future the rights of Japanese subjects who are lawfully within the territorial limits of the United States, and to prevent any repetition of discriminations such as those complained of.

In presenting these views to the Government of the United States, you are authorized to deliver to the honorable the Secretary of State a copy of these instructions.

Takaaki Kato.

Explanatory statement presented in connection with a note of the Japanese legation of the 13th of June, 1901, with a view to request an early answer to the instructions therein inclosed.

“Defective or erroneous municipal legislation, by which a sovereign claims to be unable to perform his international obligations, is no defense to a demand by another sovereign for redress for a violation of international duty. This position was taken by Great Britain against the United States in the McLeod case; by the United States against France in respect to French spoliations; by the United States against Great Britain in respect to the Alabama and other cognate claims; and by the United States against Mexico and other States in denying their right to impose by statute restrictions or disabilities not sustainable in international law on citizens of the United States.” (Wharton’s Digest.)

The McLeod case was that of a British subject arrested and held for trial in a State court (New York) for an offense which the British Government avowed was committed in conformity with authority conferred upon the said McLeod by itself. The British Government therefore contended that the case was one which could only be settled directly between the Government of the United States and itself; that consequently the State court had no jurisdiction, and that McLeod should be released.

The case resolved itself into one of conflict of authority between Federal and State jurisdiction as regarded an alien. On this head Mr. Webster, in a dispatch to Lord Ashburton dated August 6, 1842, expressed the following opinion:

“It is for the Congress of the United States, whose attention has been called to the subject, to say what further provision ought to be made to expedite proceedings in such cases; and, in answer to your lordship’s question toward the close of your note, I have to say that the Government of the United States holds itself not only fully disposed but fully competent to carry into practice every principle which it avows or acknowledges, and to fulfill every duty and obligation which it owes to foreign governments, their subjects, or citizens.”

In order to prevent complications like that which had occurred in this case, the Congress subsequently passed a law (Revised Statutes, sections 752, 753, and 754) which gave to Federal courts power to issue writs of habeas corpus whereby such cases could be brought directly within their jurisdiction.

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The Cutting case was that of a citizen of the United States arrested, tried, and convicted in Mexico in violation, it was claimed by the United States, of the law of nations. Notwithstanding the fact that die Mexican Government claimed “that the local or State jurisdiction over Cutting’s case did not allow interference by the National Government of Mexico in the matter,” the United States Government persisted in its demand, and Cutting was finally released. It was during the discussion of this case that Secretary Bayard declared that “citizens of the United States when abroad will be protected from discrimination aimed at them on account of their nationality.”

It is a well-settled principle in American law and jurisprudence that treaties are a part of the law of the land, and that, as such, they can not by overridden by the laws or enactments of the several States. In the case of McCulloch against the State of Maryland the Supreme Court held that “the States have no power by taxation, or otherwise, to retard, impede, burden, or in any manner control the operation of the constitutional laws enacted by Congress to carry into effect the powers vested in the National Government.” The same principle, as other decisions of the Supreme Court show, has been held to apply to treaties negotiated with foreign powers under the authority vested by the Constitution in the Federal Government.

The treatment accorded to Japanese subjects by the quarantine measures adopted at San Francisco and in Colorado was manifestly in violation of this principle. As regarded the San Francisco case, the United States circuit court decided that the measures in question were unconstitutional because manifestly discriminatory against certain classes of the population. In respect to the Colorado case, no result of any kind has been reached except that the governor of that State was invited to give appropriate consideration to the representations of the Japanese legation in this matter. The obnoxious regulations of the State government are no longer in force, but there is no guarantee that similar infractions of the rights of Japanese subjects may not be put into effect there or elsewhere in the United States. If this case is allowed to stand as a precedent, it may easily follow that municipal legislation will have the appearance at least of having been permitted to be paramount, not only to principles announced in the decision of the circuit court above referred to, but also to the specific rights of travel and residence guaranteed to Japanese subjects in accordance with treaty stipulations. It is not believed that this result will be in harmony with the theory or the practice of the United States, either as regards its own citizens abroad or the subjects or citizens of friendly States within its territories.

The situation is clearly one which calls for a remedy whereby similar violations of the rights of aliens may be prevented, or, if they occur, may be susceptible of prompt and effective remedy. Such a remedy was afforded in the McLeod case by the passage of an act of Congress. The case under review involves principles sufficiently important to justify the hope that some action of the kind may be taken to protect the rights of Japanese subjects guaranteed both by law and by treaty.