Papers Relating to the Foreign Relations of the United States, With the Address of the President to Congress December 8, 1914

File No. 811.52/271.

The Japanese Ambassador to the Secretary of State.

Japanese Embassy,
Washington, November 25, 1914.

Sir: The contents of your note under date of June 23 last and relative to the question of the alien land tenure in the State of California have duly been communicated by me to the Imperial Government.

In that note you have been good enough to inform me that the United States Government concur in the proposition of the Imperial Government to terminate the negotiations looking to the conclusion of a convention on the lines of the project which has been under discussion. With regard, however, to the expectation of the Imperial Government to receive a reply to the note which I had the honor of delivering to you on August 26, 1913, I understand that it is the opinion of the United States Government that your note and aide memoire of July 16, 1913, remain, as yet, substantially unanswered, and that, therefore, a reply to the same should be forwarded by the Imperial Government, so that you may be advised as to the contentions advanced in the documents to which the Imperial Government take exception.

I may here mention that, pending the aforesaid negotiations for the conclusion of a convention, an immediate answer to my note of August 26, 1913, may not have been regarded as essential by the Imperial Government, but now that the negotiations have been brought to a termination they deem it imperative that the question at issue may further be discussed to the end that a solution satisfactory to both parties may be reached at as early a date as possible.

Although, it is true, certain reservation has been made in the telegram of Baron Makino to me, transmitted to you on August 26, 1913, I should consider that the attitude of the Imperial Government towards the statements contained in your note and aide memoire of July 16, 1913, has been made substantially clear to the United States Government. In view, however, of the opinion expressed in your note of June 23 last, I am now instructed by Baron Kato, Minister of State for Foreign Affairs, to reiterate the contentions of the Imperial Government and to bring to your notice more fully the following observations upon your recent communications.

In the opinion of the United States Government that the California Enactment is not indicative of a national discriminatory policy, the Imperial Government gladly concur, for they have at no time regarded the question in that light, as has been pointed out by Baron Makino in his telegram to me sent on August 23, 1913.³ At the same time, however, the incentive which prompted the measure and the circumstances which culminated in the legislation are of so apparent a nature that there seems to be no denial of the fact that the enactment was an outcome of a local policy of discrimination against Japanese subjects qua Japanese subjects, and that it was a manifestation of racial antagonism. Although, no doubt, pains have not been spared to avoid a positive expression to that effect, this phase of the law is of an evident character, and the fact that the statute has been aimed at my countrymen is very thinly veiled and even is widely admitted. In this connection I may refer to the telegram which, I am informed, the President forwarded to the Governor of California on April 22, 1913, and which contains the following passage:

“If they (the people, the Governor and the Legislature of California) deem it necessary to exclude all aliens who have not declared their intention to become citizens from the privileges of land ownership, they can do so along lines already followed in the laws of many of the other states and of many foreign countries, including Japan herself. Invidious discrimination will inevitably draw in question the treaty obligations of the Government of the United States. I register my very earnest and respectful protest against discrimination in this case.” Without expressing any views on the proposition contained in this message, one can clearly conceive the opinion of the President himself on the character of the legislation.

The Imperial Government are unable, likewise, to sympathize with the contention offered in extenuation of the statute that the act is the emanation of economic conditions. The number of my compatriots as well as the area of land effected [affected] by the new law is so very small that the actual facts appear to the Imperial Government neither to confirm the existence of such conditions nor to warrant the necessity for such legislation, in view, especially, of the fact that since the enforcement by the Imperial Government of their policy of regulating labor emigration to the United States the Japanese population in this country has shown a conspicuous decrease. Moreover, even granted that such conditions do actually exist in California, the same may undoubtedly be said of other nationalities finding home in that state, and the Imperial Government are still unable to associate themselves with the view that they constitute a just ground for such an invidious discrimination and the wholesale exclusion of Japanese landowners.

In this connection your recent note calls attention to the existence in Japan of the Imperial Ordinance No. 352 promulgated in 1899.⁴ The Imperial Government, however, fail to find any precise analogy between this Ordinance and the act of California. Under the Ordinance, as is provided by the article quoted in your note, the liberty of residence is extended to the subjects or citizens of the Powers who are not entitled to that freedom by virtue of treaty. The purport of the law is to grant a privilege hitherto denied, not to rescind it; and the permission granted is general in its application, the prohibition being limited only to a specific case. Your note draws attention to the relation of this Ordinance to Chinese subjects in Japan. The position, however, of the latter under the existing treaty between Japan and China differs materially from that of Japanese subjects in this country under our present treaty, so that, in the absence of the Ordinance in question no Chinese subjects in Japan would have had any right to the freedom of residence as enjoyed by the subjects or citizens of other nations. The effect of the Ordinance was to extend to them this privilege and, therefore, in this respect the law is quite the reverse to that of the California statute, which deprived Japanese subjects of rights hitherto possessed.

Commenting on the remark in my previous note on the present subject, that the California statute is contrary to the letter and spirit of the treaty and is at variance with the accepted principles of just and equal treatment, your note declares that “while it is readily conceivable that a question of treaty right and a question of fair and equal treatment may co-exist, yet, if the matter under consideration has by the contracting parties been made the subject of an express adjustment and agreement, it is hardly open to either party thereafter to say that the reciprocal measure of treatment which they have voluntarily concurred in establishing is not just and equal.” With due respect to the principle professed by this assertion, you will permit me to state that at the time when the Treaty of 1911 was under negotiation between the two Governments such a situation as has been created by the California legislation was never anticipated, and no arrangement was made to meet the exigencies of the case, so that, we are now confronted with a question for which there are no adequate provisions. It is true that every nation has her freedom of domestic legislation in matters that are not expressly stipulated in her treaties with other Powers. However, in the exercise of this right it is generally deemed necessary, where friendly nations are concerned, to practice moderation, so as to maintain the principle of mutual respect, to promote the relations of reciprocal interest and not to defeat the very aim and design of the treaty itself. With regard to the negotiations which terminated in the Treaty of 1911, and to the note of Viscount Uchida⁵ dated February 21, 1911, referred to in your note, the adjustment of the alien land tenure has no doubt been left, with tacit mutual confidence, to the judicious consideration as well as the sense of equity of each contracting party. Although neither nation was then desirous of entering into a categorical treaty stipulation on this subject, the absence of such an agreement was certainly not intended to accord to either party an opportunity to enact laws, the effect of which would be incompatible with the aim and design of the treaty itself, Japan entirely relying in this respect upon the justice and impartiality of the United States. The aforesaid note of Viscount Uchida was given at the instance of the United States Government, and it is a source of disappointment to the Imperial Government now to find that the liberal terms of the assurance therein contained, instead of being appreciated, as it was desired, are being employed in extenuation of the California statute of which invidious discrimination is the principal feature. In offering the aforesaid assurance to the United States Government, the Imperial Government were certainly aware of the existence in some states of the Union of the laws denying to all aliens the privilege of land ownership, but it was beyond the contemplation of the Government that the Japanese nation as such might be excluded from this privilege enjoyed by other Powers having with the United States treaty relations or otherwise.

With regard to the question of naturalization, fundamentally speaking it should no doubt be considered as a political problem which concerns each individual nation, but when, as in the present case, the question is employed as a means of enforcing a discriminatory measure practically directed against one particular nation it must necessarily assume an international aspect. Despite statements to the contrary, the formula adopted is clearly of Californian origin and in no other state of the Union is liberty to own land made to depend upon capacity to acquire American citizenship. Historically examined, as your note points out, there is no doubt whatever that no discrimination against the Japanese nation was ever intended either by the framers of the Constitution or by the authors of the subsequent amendments, and this very fact in itself should, it seems to me, dissuade the American legislators of the present time from availing themselves of the non-explicit terms of the laws for the purpose of inflicting a stigma upon a friendly nation.

It is a matter of satisfaction to the Imperial Government to learn that your Department conforms to the principle, as stated in my aide mémoire of June 4, 1913,⁶ that where a right is once vested by treaty or by any other law it remains preserved even if the treaty or law which created such a vested right should cease to exist.

Refuting, however, the contention in the aide mémoire that the ownership of property carries with it full right of alienation, your aide mémoire of July 16, 1913, asserts that a vested right of ownership would not be impaired by a change in the law denying alienation to all aliens or to particular classes of aliens, and that my contention, if correct, would render it impossible for a country to alter its laws concerning the transmission of property. The soundness of this argument would seem to be dependent upon the justice of such an alteration in the law. A significant distinction must exist between the case where the change is general and where it is specific in its application. The stipulations in the treaties between the United States and other Powers, referred to in your aide memoire, providing for the sale of land and the withdrawal of the proceeds would seem to apply to cases where the disqualification to succeed to real estate by reason of alienage is universal, affecting all foreigners alike. Instances may not be lacking where no impairment of a vested right of ownership may take place in consequence of a modification of the law concerning transmission, but the position of the case would be quite different where, as in the present instance, the prohibition is directed against a particular race or nation so as to abridge ex industria their right of ownership by taking away from it the liberty of alienation by reasonable methods known to law.

Your aide mémoire correctly asserts that only to a few nations the United States Government have conceded the most-favored-nation treatment in the matter of the alien ownership of land. At the same time, however, a concession even more generous in character than this treatment is accorded by the United States to the subjects or citizens of some other Powers; for by the treaties with these nations the United States offers to their subjects or citizens a similar treatment in this respect as accorded to her own citizens. Moreover, the laws of a majority of the states in the Union permit aliens to own real estate independently of treaty stipulations. The assertion, therefore, that the subjects or citizens of countries not having treaties with the United States containing a most-favored-nation clause or special stipulations on the subject of land tenure are excluded from the enjoyment of land-ownership, does not tally with the actual position of aliens in many States of the Union, including California herself, where, save the restriction under the new law, all aliens are permitted to own land even in the absence of any treaty stipulations whatsoever, as provided by Section 671 of the Civil Code of California which contains the following words: “any person, whether citizen or alien, may take, hold and dispose of property, real or personal, within this State.”

In my aide mémoire I have referred to an instruction given by the Secretary of State to the American Minister in Mexico in 1879; to a resolution of the House of Representatives in 1911 calling for the termination of the Commercial Treaty between the United States and Russia; and to an instruction given by the Department of State to the United States Minister to Brazil in 1875. Your aide mémoire favors me with full detail in explanation of the cases thus cited, and informs me that the remonstrances of the United States to the foreign Powers concerned, on the occasions in question, have not had the results as desired by the United States Government. Whilst appreciating the information which you have been good enough to accord me, I am of the opinion that further discussion on the various phases of these cases would neither be wise nor necessary. I will, therefore, content myself by stating that in citing the above-mentioned cases my aide memoire has merely essayed to point out that in questions of a more or less analogous nature the United States herself has held the same views and has maintained a similar attitude towards foreign Powers—a fact which is confirmed by the information contained in your communication. No matter how the representations of the United States Government may have been received by the other nations concerned, whatever may have been the result of their remonstrances, the fact remains that the United States Government have always upheld their views and have maintained their attitude.

It is a matter of great regret to the Imperial Government that they are compelled to own their sense of disappointment to find in the communications so far received from the United States Government, little that appears to answer in a fundamental manner to the main complaint of the Imperial Government, so as to shake their original convictions which dictated the present protest, namely, that the new California statute is invidiously discriminatory against the Japanese nation, that it is contrary to the letter as well as spirit of the existing treaty, and that it is incompatible with the sentiment of amity and friendship which has always characterized the intercourse between our two nations. The question at issue, although of a serious and far reaching nature, is not, in its essential aspect, of an intricate character, and the Imperial Government are satisfied that the case has been fully set forth in their notes to the United States Government, and they deem it unnecessary to elaborate their representations to a greater extent than they have already urged.

The Imperial Government appreciate the propitious offer of the United States Government that they would stand ready to compensate any Japanese subject whose property rights might have been impaired by the operation of the statute, and that in case any Japanese subject should institute a litigation in the courts of the United States for the defense of his rights the United States Government would tender their good offices to secure the prompt and efficacious determination of his suit. Unfortunately, however, the present question is one which affects the people of Japan as a nation, so that, quite independently of the facilities and privileges which individual members of the Japanese community in California may enjoy, they must naturally look to the central administrative authorities of the two Governments for the adjustment of the question, as it concerns them in its international aspect. The Imperial Government are compelled to consider that the courses suggested by the United States Government would neither be adequate nor meet the exigencies of a case such as the present one, and they deem it their duty once again to assert their view that in questions of this nature the diplomatic channel is the only proper course through which a satisfactory solution of the controversy may fitly be attained. Whilst, therefore, the Imperial Government are aware of the existence, in the political system of the United States, of certain constitutional difficulties, they must look to the Federal Government of this country for the adjustment of the pending question, welcoming in this respect the denial in your aide mémoire of July 16, 1913, of the suggestion that the question of alien ownership of land in the States is beyond the reach of the treaty-making power.

In bringing to a termination the negotiations for the conclusion of a convention, the Imperial Government were actuated by the opinion that the project, as it then stood, would compose in no wise the existing misunderstandings. Our first mutual concern, it appears to the Imperial Government, should be to ameliorate the present situation in California created by the unfortunate legislation, and then to guard against all possible future troubles of a similar nature. The task may not be a facile one, but the Imperial Government repose too much confidence in the integrity and judgment of the American Government to entertain any doubt that means of the solution of the question will be found. It is, therefore, the earnest hope of the Imperial Government that a response to this note may be forthcoming in which the United States Government will express their concurrence with the views herein contained and will advocate a course which may have the effect of relieving the difficulties. Meanwhile the Imperial Government deem it to be a matter of grave importance that no efforts on their part as well as on that of the United States Government should be spared to meet the question with entire rectitude, and to prevent any possible future complications which might arise and result in perplexing the situation and aggravating the susceptibilities of the two nations.

Accept, Sir, the renewed assurances of my highest consideration.

S. Chinda

.

3. Above referred to as the note (telegram) delivered to the Secretary on August 26, 1913.
4. For. Rel. 1913, p. 642.
5. For. Rel. 1913, pp. 626–627.
6. For. Rel. 1913, p. 632.