File No. 811.52/165.

The Japanese Ambassador to the Secretary of State.

Sir: I did not fail to transmit to my Government at once by cable a copy of the note which you did me the honor of addressing to me [Page 633] under date of the 19th instant [ultimo], in reply to mine of the 9th, idem, with regard to the law recently enacted by the State of California on the alien land tenure.

That reply did not, I regret to say, have the effect of lessening the sense of disappointment and grave concern experienced by the Imperial Government in consequence of the legislation to which it had reference. Having in view the attitude and action of deep sympathy expressed and taken by the American administration in the matter, while the measure was still pending in the legislature of California, the Cabinet at Tokio had good reason, it was thought, to expect some intimation of willingness, on the part of the American Government, to cooperate with the Government of Japan in the endeavor to find satisfactory solution of the problem, instead of the suggestion that the courts of the United States were open to those of my countrymen who might feel themselves to have been deprived of treaty rights and guarantees.

The persons prejudicially affected by the enactment complained of are expressly limited to those aliens who are not eligible to citizenship. Considering that Japanese subjects are, as a nation, apparently denied the right to acquire American nationality, that they are the principal sufferers from that enactment, and that the avowed purpose of the law was to deprive my countrymen of the right to acquire and to possess landed property in California, the Imperial Government are unable to escape the conclusion that the measure is unfair and intentionally racially discriminatory, and, looking at the terms of the treaty between our two countries, they are equally well convinced that the act in question is contrary to the letter and spirit of that compact and they moreover believe that the enactment is at variance with the accepted principles of just and equal treatment upon which good relations between friendly nations must, in the final analysis, so largely depend.

Nor can my Government find in the new law, as you have done, any declaration of the intention to respect and preserve all rights under existing treaties. It is quite true that section 2 of the act provides in effect that aliens not eligible to citizenship may acquire, possess, enjoy, and transfer real property, or any interest therein, to the extent and for the purpose prescribed by any treaty how existing between the United States and the country of which such alien is a citizen or subject, and not otherwise. But, in the opinion of the Imperial Government, that provision can not be reconciled with the treaty stipulations to which they appealed in my former note, and to which they again appeal in this communication. Japanese people own real property, and other interests therein, in California under the existing treaty, as well as in accordance with law. Such property, having been duty acquired, is unquestionably entitled, in virtue of the treaty, to the same “most constant protection and security” as similar property belonging to citizens of the United States. Efforts were no doubt made to bring the measure into accord with the existing treaty stipulations, so far as that could be done consistently with the real purpose of the enactment. But having regard to the pronouncement contained in section 7 of the act, it may be doubted whether the legislature of California considered it absolutely essential to respect the treaty engagements bearing on the subject of alien land ownership, [Page 634] in so far as those engagements could not be reconciled with the wishes of the State in the matter.

In these circumstances, it becomes my duty, under instructions from my Government, to announce to you that the Imperial Government are compelled, much to their regret, to maintain, in its integrity, the protest contained in my previous note on this subject.

I beg to point out, in this connection, that my Government can not regard as responsive to the actual situation the suggestion contained in your note to the effect that the Japanese people are at liberty to appeal to the courts of the United States for the enforcement of their constitutional and legal rights. My countrymen who may suffer wrong in consequence of the enactment will no doubt look to those tribunals for relief. But I venture to make it entirely clear to your appreciation that the Imperial Government are firmly convinced that the phase of the controversy now under discussion is itself appropriately amenable to ordinary diplomatic processes. The question at issue is a question between the Government of Japan and that of the United States, as to the true intent and meaning of their existing treaty, and the extent to which the rules and principles of fair and equal treatment may, in comity and good conscience, be invoked in the present case. The wrong complained of is directed against my countrymen as a nation. It was committed by the authorities of a single State of the Union, contrary to the expressed wishes and advice of the Federal Government. It is, nevertheless, to that Government alone, that Japan must look to have the wrong undone, since it is with that Government alone that the Imperial Government hold diplomatic intercourse.

The number of my countrymen actually affected by the discriminatory legislation complained of is small, and the quantity of landed property in California actually held by them, both as owners and leaseholders, is very inconsiderable. On the other hand, it is a recognized fact that, as a result of a careful and conscientious enforcement of the existing understanding on the subject of labor emigration from Japan to America, the Japanese population in the United States has, since that understanding took effect, shown an annual decrease. Accordingly, if the object of the legislation in question was wholly economic, then the conclusion is natural, it seems to the Imperial Government, that the apprehensions upon which the enactment was based were unjustifiable and without sanction of good reason, and I trust I may be permitted in the present context to add the suggestion that the law under discussion does not concern itself exclusively with agricultural lands. But even if the basis of the act had been wholly economic that fact could not, in the opinion of my Government, be advanced as a valid and sufficient reason for annulling or abridging vested rights of property of my countrymen, and I beg to assure you that the Imperial Government have too high an opinion of the sense of right and justice of the American Government to believe for a moment that that Government will permit a State to set aside the stipulations of the treaty or to impair the obligations of reciprocal friendly intercourse and good neighborhood.

In conclusion I beg, in pursuance of instructions from my Government, to invite your attention to the phase of the present question to which, in the situation as it existed at the time my former note was [Page 635] addressed to you, it was not deemed either necessary or advisable to advert. I refer to the matter of Japanese naturalization in America in its relation to the question of Japanese land ownership. The provisions of law, under which it is held that Japanese people are not eligible to American citizenship, are mortifying to the Government and people of Japan, since the racial distinction inferable from those provisions is hurtful to their just national susceptibility. The question of naturalization, however, is a political problem of national and not international concern. So long, therefore, as the distinction referred to was employed in relation to rights of purely political nature the Imperial Government had no occasion to approach the Government of the United States on the subject. But when that distinction is made use of, as in the present case, for the purpose of depriving Japanese subjects of rights and privileges of a civil nature, which are freely granted in the United States to other aliens, it becomes the duty of the Imperial Government, in the interest of the relations of cordial friendship and good understanding between the two countries, to express frankly their conviction that the racial distinction, which at best is inaccurate and misleading, does not afford a valid basis for the discrimination on the subject of land tenure.

Accept [etc.]

S. Chinda.