Papers Relating to the Foreign Relations of the United States, With the Address of the President to Congress December 2, 1913

File No. 811.52/181.

Aide-mémoire in explanation and support of Viscount Chinda’s notes of May 9 and June 4, 1913.

Imperial Japanese Embassy,
Washington.

I.

The existing Japanese-American treaty accords to Japanese subjects, in reciprocity, liberty in the United States to own and lease houses upon the same terms as citizens of the United States, and to lease land for residential and commercial purposes also upon the same terms as such citizens.

The words “to own” are words of the widest significance, and, in the context in which they appear in said treaty, include, it is maintained, the right to acquire real property in question by all ordinary lawful means, viz., by purchase, by devise, and by descent, and those words also, it is contended, cover the right to dispose of such real property, when duty acquired, by all various methods known to the law, viz., by sale, by gift, by bequest, and by transmission. In other words, ownership carries with it, as a necessary incident, full right of alienation. But all doubts on the subject will be removed, when it is considered, firstly, that the words “liberty to own” appearing in the treaty are supplemented by a parity engagement, to the effect, “upon the same terms as American citizens,” and, secondly, that the liberty so enjoyed by such citizens being full and complete, the corresponding liberty accorded to Japanese subjects is equally without limitation or qualification.

So too, liberty to Japanese subjects to lease land for residential and commercial purposes, upon the same terms as American citizens, naturally carries with it the same freedom in the matter of acquiring and disposing of the leased property.

Again, under the laws actually in operation in California (the new alien land enactment does not take effect until August 10), Japanese subjects have full right to take, hold and dispose of all real property and interest therein. That right carries with it the capacity to bequeath and transmit such property.

The treaty now in force also guarantees to Japanese subjects, in reciprocity, the same most constant protection and security for their property in the United States that is there enjoyed by American citizens in respect of property belonging to them.

The treaty of 1894,¹ which was superseded in 1911 by the present one, provided in Article I that, in whatever relates to the succession to personal estate by will or otherwise, and the disposal of property of any sort and in any manner whatsoever, which they may lawfully acquire, the subjects or citizens of each contracting party shall enjoy in the territories of the other the same privileges, liberties, and rights as native subjects or citizens, or subjects or citizens of the most favored nation.

Confidently relying upon the foregoing treaty and statutory provisions, Japanese subjects have become owners and lessees of land and houses in California, and the real property so acquired has, for all purposes, become fully vested in such owners. It was in the presence of this state of things that the new alien land law was enacted. It, in effect, deprives all Japanese subjects of the capacity to bequeath and transmit their duly acquired real property or interest therein, and it also denies to such subjects the capacity to acquire any real property or interest therein by devise or by descent. The measure also contains no less objectionable features concerning companies, associations, and corporations, but as this aide-mémoire is designed to deal exclusively with the provisions of the law which trench upon individual rights the clauses relating to legal persons are, for the present, reserved.

It is the firm conviction of the Imperial Government that the provisions of the statute in question, which are intended either to abridge treaty rights of Japanese subjects in the matter of acquisition and disposition of real property and interest therein, or to unsettle real estate titles already duly vested under the laws of California, are contrary to the express stipulations of the treaty now in force between Japan and the United States in the following respects:

(a) That so far as the act takes away from Japanese subjects the capacity, hitherto freely enjoyed by them, to acquire, by devise and descent, houses for all purposes, and leasehold of land for residential and commercial purposes, it is in conflict with the first clause of Article I of said treaty, since that clause accords to Japanese subjects liberty to own houses and to lease lands upon the same terms as American citizens, and it will not be contended that the liberty of such citizens in that respect has been annulled or abridged;

(b) That, so far as the act deprives Japanese subjects of the capacity to bequeath and transmit to their devisees and heirs real property and interest therein, duly acquired by them under said treaty, it is inconsistent with the first and third clauses of Article I, since, in addition to the guarantee of equal treatment which is contained in the first clause above mentioned, property of Japanese subjects is, by the third clause aforesaid, assured of the same most constant protection, the same equal protection of equal laws, that is accorded to the property of American citizens, and it goes without saying that property rights of such citizens still remain complete and undisturbed; and

(c) That, so far as the act takes away from Japanese subjects the capacity of bequeathing and transmitting real property and interest therein, already duly acquired by them under the laws of California, it is repugnant to the above-mentioned third clause of Article I of the treaty, since it impairs obligations of the contracts under which such property was acquired and is held, and thus deprives Japanese subjects of that equal protection for their property which the treaty extends to them.

The Imperial Government are also of the opinion that the act in question, so far as it takes away from Japanese subjects the right to dispose, in any manner whatsoever, of the real property or interest therein, lawfully acquired by them prior to July 17, 1911, is an impairment of vested rights created under the treaty of 1894.

The foregoing propositions are made with the greater confidence since it is found that the principles upon which they rest are fully sustained by the line of decisions of the Supreme Court of the United States, which have contributed to the just renown of that high tribunal.

The decisions to which, in the present relations, the Imperial Government especially refer are found in the following cases:

• Fairfax’s devisee v. Hunter’s lessee.
• Chirac v. Chirac.
• Orr v. Hodgson.
• Society for the Propagation of the Gospel v. Town of New Haven.
• Geoffroy v. Riggs.
• The Chinese Exclusion case.

In Chirac v. Chirac, Society for the Propagation of the Gospel v. Town of New Haven, and the Chinese Exclusion case, as well as in Watson v. Donnelly (New York Supreme Court, 1859), the principle was clearly announced that duly vested rights, acquired under a treaty, still continue, although the treaty itself is abrogated.

II.

The Imperial Government are equally convinced that the provisions of the land legislation in question are irreconcilable with the spirit and intent of the Japanese-American treaty, as well as inequitable and at variance with the generally accepted principles which regulate commercial intercourse between friendly states, because such provisions discriminate against Japanese subjects, not only as compared with American citizens, but as compared with subjects of other countries, in a matter in which, internationally speaking, aliens are usually placed on national or most favored nation footing.

While, in the relations between states, the principle of equal treatment is sometimes made amenable to exceptions and qualifications, this is the first instance, it is believed, in which a power, having in force a reciprocal commercial treaty with a clause guaranteeing most favored nation treatment “in all that concerns commerce and navigation,” has ever been placed by the other contracting state at a disadvantage as compared with non-treaty countries in matters which, in the treaty, are made the subject of reciprocal concession.

International discriminations are in any case obnoxious, and, if carried beyond limits of actual and recognized necessity, are harmful to international good relations, independently of the question whether they are repugnant to treaty stipulations or not. In the definition of those permissible limits, and in the establishment of the principle of equal opportunity, no country has taken a firmer stand or exercised a more powerful influence than the United States. Thus in 1879, the Secretary of State at Washington, in an instruction addressed to the American Minister in Mexico, announced that “a Mexican statute discriminating against citizens of the United States and other aliens in respect to the capacity to hold real estate in Mexico is in conflict with the treaty of 1831.” (Dr. Moore’s International Law Digest, Volume VI, page 702.) The treaty, so appealed to, contains no express provisions on the subject of ownership of real estate. It reciprocally accords most favored nation treatment in respect of commerce and navigation, and grants the right of residence, of hiring houses and warehouses for purposes of commerce, and of succession to personal estate, and it also extends protection to persons and property. Accordingly, it must be assumed that the discrimination complained of was in disregard of the spirit and purposes, rather than express words, of the treaty.

But unjust discriminations based upon race are still more objectionable. Russia’s severe treatment of Jews has been deeply resented by the United States, and on December 13, 1911, the House of Representatives, by an unusual vote of 301 to 1, passed a resolution in strong condemnation of the action of Russia. The resolution declared:

That the people of the United States assert as a fundamental principle that the rights of its citizens shall not be impaired at home or abroad, because of race or religion; that the Government of the United States concludes its treaties for the equal protection of all classes of its citizens without regard to race or religion; that the Government of the United States will not be a party to any treaty which discriminates, or which, by one of the parties thereto is so construed as to discriminate, between American citizens on the ground of race or religion; that the Government of Russia has violated the treaty between the United States and Russia concluded at St. Petersburg December 18, 1832, refusing to honor American passports duly issued to American citizens on account of race and religion.

And for these reasons, the resolution called upon the President to denounce said treaty three days after the adoption of the above resolution.¹ The United States notified Russia of the termination of the treaty, saying that it had been recognized that the treaty was “no longer fully responsive, in various respects, to the needs of political and material relations of the two countries.” The action of Russia it seems was not directed against American Jews exclusively. It applied equally to all alien Israelites, and, although resting largely upon race and religion, the discrimination complained of was inspired, in part at least, so Russia declared, by economic considerations. If in the presence of this state of things, the United States Government found sufficient reason to object to Russia’s action, then the Imperial Government have much stronger grounds for protesting against the invidious discrimination of the new California enactment, since those discriminations are not only irreconcilable with express treaty stipulations, but, being national and racial, are in clear disregard of national susceptibilities.

III.

In a number of States, the right of aliens to hold real estate has been made to depend upon actual filing of declarations of intention to become citizens. That requirement, as a condition precedent to the exercise of the right in question, can not be said to be unreasonable or illogical. A relation is thereby established between said right and eventual citizenship, because the continued existence of the right depends upon actual completion of the process of naturalization.

California is the only State, it is believed, in which the right of aliens to hold real property has been made to rest solely upon eligibility to citizenship. Such eligibility, in the context in which it is used, has no relation to the question of citizenship, since no action looking to ultimate naturalization is required. The formula appearing in the new California enactment was employed as a convenient paraphrase to express firm intention to discriminate against Japanese subjects as compared with aliens belonging to white and African races in the matter of ownership of land and houses.

Clear and important distinction may, therefore, be said to exist between the laws of such other States and of California, on the subject of alien land tenure in this: By the laws of such other States, actual steps looking to ultimate naturalization have to be taken before the right of real estate ownership can be exercised; whereas, by the law of California, the capacity to take such steps is alone sufficient. The discrimination complained of is no less invidious and disregardful of the treaty rights of Japan, because of indirect language in which it is expressed.

IV.

It has been suggested that the power to deal with the question of alien real estate ownership in the United States belongs exclusively to the several States. Controlling decisions of the courts of the United States might be cited in refutation of that suggestion. But it is sufficient to point out that the United States accepted the first and third clauses of Article I of the existing Japanese-American treaty, as well as Article I of the treaty of 1894, and that she can not have given her consent to those stipulations if the power to regulate the question of ownership of real property by aliens was reserved exclusively to the States.

V

The Imperial Government, in concluding their present study of the question of the recently enacted alien land law of California, desire to invite attention to the note from the Secretary of State to the American Minister in Brazil, dated March 5, 1875, on the subject of appropriate procedure in a case analogous to the present one. The language used in that note is so apposite, and supports in such a striking manner the position taken by Viscount Chinda in his communication of June 4, that indulgence is craved for quoting here the words of Mr. Fish:

The reference of the claimant to the authorities of the Province for redress will not be acquiesced in. Those authorities can not be officially known to this Government. It is the Imperial Government at Rio de Janeiro only which is accountable to this Government for any injury to the person or property of a citizen of the United States committed by the authorities of a Province. The same rule would be applicable to the case of a Brazilian subject who, in this country might be wronged by the authorities of a State. (Dr. Moore’s International Law Digest, Vol. VI, p. 816.)

So far as the California enactment injuriously affects individual rights of Japanese subjects, the aggrieved parties will, no doubt, appeal to the courts for redress. The question now under discussion between Japan and the United States involves interpretation of treaties, and, in the final solution of that question, the two Powers have an equal voice and interest. Consequently the only appropriate recourse at this time is diplomatic. In analogous cases, however, the United States has instituted legal proceedings, in defence of existing treaties. The cases in point, to which references are made, are the California School and the Horcon Ranch cases. In both instances, suits were brought by the United States in the Circuit Courts of the United States.

Japanese Embassy,
July 3, 1913.

1. For the text of this treaty, see Malloy’s Treaties, vol. i. p. 1028; or Compilation of Treaties in Force, p. 474.
1. For. Rel. 1911, p. 695.