811.5294/230

The Department of State to the Japanese Embassy

Memorandum

The Department of State has received the memorandum of the Japanese Embassy dated January 3, 1921, in regard to the alien land law adopted by the State of California through the vote upon the initiative petition at the general election in November last.

The memorandum refers to the correspondence that took place between the Japanese Embassy and the Department of State in 1913 [Page 322]and 1914, reiterates the objections which the Imperial Government raised against the land law adopted by the Legislature of California in 1913, and states that those objections apply to the new law of 1920 with still greater force and cogency.

It will be recalled that in the correspondence which took place in 1913 and 1914 the Department of State took the position that the question at issue could not be considered as one of legal right accruing to the Japanese Government by virtue of the stipulations of the existing treaty of 1911, inasmuch as all reference to the subject-matter in controversy—namely the right of ownership in real property—had been by mutual consent omitted from that treaty, upon the express understanding, embodied in a formal exchange of notes between the Japanese Ambassador and the Secretary of State,67 that such rights should be regulated and determined within the territories of either party by its own laws. This Government remains firm in the conviction expressed by it at that time, that nothing in the treaty affords a basis for the contention that the California land legislation is in violation either of the letter or the spirit of any treaty obligations which this Government has assumed towards the Government of Japan.

It was furthermore maintained by this Government, in the correspondence of 1913 and 1914, that in so far as concerns any legal rights claimed by individual Japanese subjects by virtue of the stipulations of the treaty, there was and is at all times available a recourse to judicial determination of such injuries to private rights and interests as might be contended to have been suffered in consequence of the legislation adopted by the State of California. It was pointed out that such recourse to judicial determination of rights is the procedure contemplated by our laws, and normal to the institutions and traditions of this country, in which it is customary for citizens and aliens alike to seek through the action of the courts the determination and protection of their rights under the constitution, treaties, and other laws of the land. Yet so far as the Department of State has been made aware, no case involving this issue has been adjudicated by any of the higher courts since the original California land law of 1913 went into effect. In view of this fact, the Department of State cannot but feel that Japanese subjects resident in California can scarcely have found in the operation of that statute such occasion for complaint on the ground of violation of their treaty rights, as had been alleged by the Japanese Government.

Such being the case, this Government is constrained to reiterate the view that, so far as concerns any question of bare legal right [Page 323]based upon the provisions of the treaty, the judicial determinations of those rights should in accordance with general international practice be made a condition precedent to any further discussion of the matter through diplomatic channels.

Pending such a determination of the purely legal aspects of the question, however, the Government of the United States is not unmindful of the feeling with which the Japanese Government and people have viewed the enactment of measures which they esteem to be discriminatory in character; and fully sharing with the Government of Japan the consciousness of the supreme importance to be attached to the maintenance of the traditional relations of good understanding between the two nations, this Government is with like forbearance envisaging the difficult problem of which one aspect is presented by the question of the ownership of land in California, and looks hopefully to the possibility of a satisfactory adjustment consistent with the honor and true interests of both nations. To this end, the Department of State has authorized the-strictly informal conversations now in progress between Ambassador-Morris and Ambassador Shidehara, and will be prepared to consider carefully and sympathetically any suggestions which they may find occasion to submit as a basis for negotiations with a view to meeting the larger questions of policy which have been presented.

  1. Notes dated Feb. 21, 1911, Foreign Relations, 1913, p. 626.