File No. 811.52/165.
The Secretary of State to the Japanese Ambassador.
Washington, July 16, 1913.
Excellency: I have had the honor to receive and carefully to consider the note which your excellency was so good as to address to me under date of the 4th instant [ultimo] on the subject of the recent act of the Legislature of California relating to the tenure of lands by aliens in that State.
I am pained to learn that the Imperial Government, after reading the contents of my note of the 19th of May, in reply to their protest, continue to be of opinion that the act in question is not only unfair but “intentionally racially discriminatory”; that it is “contrary to the letter and spirit” of the treaty between the two countries; and that it 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”.
In my note of the 19th of May I did not omit to point out that the California statute, far from being indicative of any national discriminatory policy, was not even to be regarded as an expression of political or racial antagonism, but was rather to be considered as the emanation of economic conditions, which were in this instance of a local character. I can not help feeling that in the representations submitted by your excellency the supposition of racial discrimination occupies a position of prominence which it does not deserve and which is not justified by the facts. I am quite prepared to admit that all differences between human beings—differences in appearance, differences in manner, differences in speech, differences in opinion, differences in nationality, and differences in race—may provoke a certain antagonism; but none of these differences is likely to produce serious results unless it becomes associated with an interest of a contentious nature, such as that of the struggle for existence. In this economic contest the division no doubt may often take place on racial lines, but it does so not because of racial antagonism but because of the circumstance that the traditions and habits of different races have developed or diminished competitive efficiency. The contest is economic; the racial difference is a mere mark or incident of the economic struggle.
All nations recognize this fact, and it is for this reason that each nation is permitted to determine who shall and who shall not be permitted to settle in its dominions and become a part of the body politic, to the end that it may preserve internal peace and avoid the contentions which are so likely to disturb the harmony of international relations.
[Page 642]That the Imperial Government of Japan accept and act upon these principles precise proof is not wanting.
By the Imperial Ordinance No. 352 of 1899, which is understood to be still in force, it is provided:
Article 1. Foreigners, even those who either by virtue of treaty or custom have not freedom of residence, may hereafter reside, remove, carry on trade and do other acts outside the former settlements and mixed residence districts. Provided that in the case of laborers they cannot reside or carry on their business outside the former settlements or mixed residential districts unless under the special permission of the administrative authorities.
The classes of such laborers (referred to in the preceding paragraph) and details for the operation of this Ordinance shall be determined by the Minister for Home Affairs.
The Department is advised that this ordinance was promulgated in order to prevent the immigration of Chinese laborers, who were attracted to Japan by the rise of wages which began in that country after the war with China and has continued ever since. As a result of this rise in wages conditions grew up not unlike those which have existed at certain places in the United States, the objection made in Japan to Chinese laborers being that they worked for lower wages than the natives. In the summer of 1907, as the Department is advised, two groups of Chinese laborers were excluded from Japan under the application of the ordinance above mentioned, one of the excluded groups being composed of coolies, the other of skilled artisans such as mechanics. The Department is not advised that the ordinance has been or is enforced as against laborers other than Chinese. The Department is, however, far from imputing to the Imperial Government in its enforcement of the ordinance a design to make a racial discrimination. On the contrary, the Department assumes that the question with which the Imperial Government were seeking to deal was in its essence economic, and racial only incidentally, and that this would continue to be the case even if the ordinance, although it was no doubt originally designed to exclude Chinese laborers, should be applied to laborers of another race.
In certain statements in your excellency’s note, to which I have heretofore adverted, I am obliged to think that due weight has not been given to the provisions of the treaties between the two countries. Your excellency is so good as to say that, “looking at the terms of the treaty between our two countries,” the Imperial Government are convinced that the California statute “is contrary to the letter and spirit of that compact,” and that they also believe that the statute is at “variance with the accepted principles of just and equal treatment.”
In these passages two questions apparently distinct and possibly inconsistent are introduced together; for, 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.
The treaty to which your excellency’s note refers is that which was signed at Washington on February 21, 1911, by Mr. Knox, Secretary of State, representing the United States, and by Baron [Page 643] Uchida, your immediate predecessor, representing the Imperial Government.
This treaty was based upon a draft presented by the Imperial Government. In Article I of this draft there is found the following clause:
3. They [the citizens or subjects of the contracting parties] shall be permitted to own or hire and occupy the houses, manufactories, warehouses, shops, and premises which may be necessary for them, and to lease land for residential, commercial, industrial, manufacturing and other lawful purposes.
It will be observed that in this clause, which was intended to deal with the subject of real property, there is no reference to the ownership of land. The reason of this omission is understood to be that the Imperial Government desired to avoid treaty engagements concerning the ownership of land by foreigners and to regulate the matter wholly by domestic legislation.
In the treaty as signed the rights of the citizens and subjects of the contracting parties with reference to real property were specifically dealt with (Art. 1) in the stipulation that they should have liberty “to own or lease and occupy houses, manufactories, warehouses, and shops,” and “to lease land for residential and commercial purposes.” It thus appears that the reciprocal right to lease land was confined to “residential and commercial purposes,” and that the phrases “industrial” and “other lawful purposes,” which would have included the leasing of agricultural lands, were omitted.
The question of the ownership of land was, in pursuance of the desire of the Japanese Government, dealt with by an exchange of notes in which it was acknowledged and agreed that this question should be regulated in each country by the local law, and that the law applicable in the United States in this regard was that of the respective States. This clearly appears from the note of Baron Uchida to Mr. Knox of February 21, 1911, in which, in reply to an inquiry of the latter on the subject, Baron Uchida said:
In return for the rights of land ownership which are granted Japanese by the laws of the various States of the United States [of which, I may observe, there are now about 30] the Imperial Government will by liberal interpretation of the law be prepared to grant land ownership to American citizens from all the States, reserving for the future, however, the right of maintaining the condition of reciprocity with respect to the separate States.
In quoting the foregoing passage I have italicized the last clause for the purpose of calling special attention to the fact that the contracting parties distinctly understood that, in conformity with the express declaration of the Imperial Japanese Ambassador, the right was reserved to maintain as to land ownership the condition of reciprocity in the sense that citizens of the United States, coming from States in which Japanese might not be permitted to own land, were to be excluded from the reciprocal privilege in Japan.
From what has been pointed out it appears to result, first, that the California statute, in extending to aliens not eligible to citizenship of the United States the right to lease lands in that State for agricultural purposes for a term not exceeding three years, may be held to go beyond the measure of privilege established in the treaty, which does not grant the right to lease agricultural lands at all; [Page 644] and secondly, that, so far as the statute may abridge the right of such aliens to own lands within the State, the right has been reserved by the Imperial Government to act upon the principle of exact reciprocity with respect to citizens of the individual State. In a word, the measure of privilege and the measure of satisfaction for its denial were perfectly understood and accepted.
In connection with the question of land ownership your excellency refers to the subject of naturalization in the United States, and in this relation I observe your excellency’s statement that “Japanese subjects are, as a nation, apparently denied the right to acquire American nationality.” Your excellency further declares that the provisions of law, under which it is held that Japanese 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 susceptibilites.” Your excellency very properly ackowledges the fact that the question of naturalization “is a political problem of national and not international concern.”
I gladly assume that your excellency, in saying that Japanese subjects are “as a nation” denied the right to acquire American nationality, has not intended to convey the impression that the naturalization laws of the United States make any distinction that may be specifically considered as national either in terms or in effect. Nor would it appear, if the legal provisions in question were historically examined, that the Government and people of Japan have any ground to feel that any discrimination against them was intended. But, as the fact is acknowledged in your excellency’s note that the question of naturalization “is a political problem of national and not international concern,” I infer that your excellency is not instructed to press the matter, and I will forbear to enter into a more extended discussion of it on the present occasion.
In the note of your excellency an apprehension is expressed that, in spite of the fact that the California statute purports to assure to aliens the right to hold real property in the manner and to the extent and for the purposes specified in any treaty, the terms of the law may be found to abridge not only rights of property falling within the terms of the existing treaty but also rights of property acquired in conformity with law theretofore. This Department, however, does not doubt that full protection will be extended by the courts to all vested rights of property. And I desire to add that if a case should ever be disclosed in which it was maintained by the Imperial Government that the existing property rights of one of its subjects had been impaired by the statute, this Government would stand ready to compensate him for any loss which he might be shown to have sustained, or even, in order to avoid any possible allegation of injury, to purchase from him his lands at their full market value prior to the enactment of the statute.
In conclusion, I have the honor to assure your excellency that the subjects of His Imperial Majesty will, as stated in my previous note, find in the courts of the United States, in the manner provided by the Constitution of the United States, full protection for all their legal rights; and I desire further to assure you that this Government [Page 645] will, through its proper officials, stand ready at all times to use its good offices to secure the proper and efficacious determination of such suits. In this manner our Governments will cooperate for the preservation of the traditional friendship and mutual consideration which have ever characterized the relations of amity and good will that have prevailed between the Governments, and peoples of the two countries.
Accept [etc.]