File No. 811.52/181.
Aide-mémoire to the Japanese Embassy.
Viscount Chinda’s aide-mémoire is presented apparently in pursuance of a telegram received on June 30 from the Imperial Minister for Foreign Affairs. In this telegram the statement is made that the larger part of the land actually owned by Japanese in California was acquired before July 17, 1911, the effective date of the existing treaty; and certain decisions of the Supreme Court of the United States in Chirac vs. Chirac, 2 Wheaton, 259, and other cases are invoked as guaranteeing rights of property which were acquired by Japanese subjects in the United States while the treaty of 1894 was in operation.
The Department, following the example set in the aide-mémoire, refrains from entering on the present occasion into a minute analysis of each of the judicial decisions thus cited. The Department, however, accepts the enunciation of principle, quoted from the decision in Chirac v. Chirac, “that a right once vested does not require, for its preservation, the continued existence of the power by which it was acquired”; and that “if a treaty, or any other law, has performed its office by giving a right, the expiration of the treaty or law can not extinguish that right.” The Department has already observed, in its reply to Viscount Chinda’s note of the 4th of June, and now repeats, that it does not doubt that full protection will be extended by the courts to all vested rights of property.
So far as the aide-mémoire relates to rights secured by the existing treaty of 1911, the Department may again recur to the fact that, by Section 2 of the California statute, it is provided that aliens not eligible to citizenship under the laws of the United States, “may acquire, possess, enjoy, and transfer real property or any interest therein in this State in the manner and to the extent and for the purposes prescribed by any treaty now existing between the Government of the United States and the nation or country of which such alien is a citizen or subject.” As this clause in express terms requires the recognition of any rights secured by existing treaty, it is not to be assumed that any right so secured would not be fully protected.
The aide-mémoire, however, appears to extend too far the theory that the ownership of property carries with it a vested right to dispose of such property in all the ways in which property may be transferred, by sale, by gift, by devise, or by descent, without future limitation or restriction. Such a theory would render it impossible for a country to alter its laws with regard to the transmission of property. So far as the Department is advised it has never been held that a right [Page 646] of ownership, vested either in a citizen or in an alien, would be impaired by a change in the law denying to any and all aliens the right to purchase lands. Such changes in the law have not been infrequent either in the United States or elsewhere, and it is believed that they have not been held to impair vested rights. If such rights are not impaired by forbidding alienation or transmission to all aliens, they are obviously not impaired by the prohibition of alienation or transmission to particular classes of aliens. Attention may in this relation be drawn to numerous treaties between the United States and other powers by which it is provided that where, on the death of the owner, real estate in the territories of the one power would descend upon a citizen of the other who is disqualified by alienage from taking, the latter shall be allowed a period, varying according to the stipulations of the treaties, to sell the land and withdraw the proceeds. These stipulations clearly recognize the fact that the right of ownership is not regarded as carrying with it an unlimited and unalterable right of disposition or descent.
The aide-mémoire, recurring to the “spirit and intent” of the existing treaty rather than to its particular stipulations, maintains that the provisions of the California statute discriminate against Japanese subjects “in a matter in which, internationally speaking, aliens are usually placed on national or most favored nation footing.” The Department regrets that it is unable to admit that the assumption here made is well founded. Without entering minutely into an examination of conventional stipulations, the Department desires to point out that the alien ownership of land has seldom been treated in the practice of the United States as a matter of most favored nation treatment. The most favored nation clauses in the treaties of the United States have almost universally related to matters of commerce and navigation. In only a few cases, perhaps not more than two or three, has alien ownership been conceded by means of a most favored nation clause. With these exceptions the right of alien ownership has been secured only by special treaty stipulations, with the result that the citizens of countries not having such treaty with the United States were unable to enjoy the right of ownership.
In this relation the aide-mémoire quotes from Moore’s Digest of International Law, volume 6, page 702, a summary to the effect 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.”
The Department desires to deal with the subject to which the foregoing summary relates, as it does with all other matters, with entire candor. The aide-mémoire correctly states that the treaty of 1831 contains no express provision on the subject of ownership of lands and that the most favored nation clause which it contains relates only to commerce and navigation and to certain other matters in which the holding of real estate is not included. Nevertheless, the Government of the United States then essayed to make the same argument which is now so strongly urged in behalf of the Imperial Government, but was in the end obliged practically to abandon it. The facts are as follows:
The remonstrance or protest of the United States related to certain Mexican laws restricting the right of alien ownership of lands, and [Page 647] particularly to the law of July 20, 1863, which contains the following article:
2. Any inhabitant of the Republic has the right to denounce up to two thousand five hundred hectares, and no more, of public lands, with the exception of the natural born and naturalized citizens of nations adjoining the republic who, by no title whatever, can acquire public lands in the States bordering the said nations.
That this Department on the occasion in question went the full length of the present Japanese contention is conclusively shown by the text of its instruction dated June 23, 1879, which reads as follows:
The discrimination in this respect between those citizens and other foreigners is still believed to be invidious, unnecessary, at variance with the treaty, and quite incompatible with those friendly relations which the obvious interest of both countries requires should be maintained between them. * * *
The Mexican law of 1863 is specially invidious toward citizens of our border States, because it practically discriminates against them by name, and thereby stigmatizes them as unworthy to have the privilege of holding real estate. This stigma can not be acquiesced in by this Government, which does not admit the right of any foreign power to discriminate between citizens of different States of this Union, who can only be known abroad as citizens of the United States. It may be that the treaty of 1831 does not expressly confer upon citizens of the parties the right to hold real estate in their respective territories, nor does it provide for an equality of rights in that respect between Mexicans and our own citizens. Although the equality between citizens of the United States and other foreigners in Mexico is by the 2nd and 3rd Articles of the Treaty literally restricted to matters of commerce and navigation, it may also fairly be construed to include a like equality in the privilege of acquiring and holding real estate. It can not be doubted that if the construction now claimed had been anticipated, it would have been thwarted by an explicit provision. There is believed to be no such discrimination against Mexican citizens in any law in this country. There may be at least one effect of the Mexican Act of 1863, which may have escaped the attention of that Government. Both the Treaty of Guadalupe Hidalgo and the Gadsden treaty guarantee to those Mexican citizens in the ceded territories who might become citizens of the United States their full rights of property in those territories. It is understood that many of those persons were owners of real estate in the border Mexican States. The effect of the law adverted to may be to confiscate that property while the title to that of those in Texas or elsewhere who were formerly Mexicans is guaranteed to them by treaty. It is hoped, therefore, that the policy of the Mexican Government on this subject will be so changed as to free it from the serious objections which have been pointed out.
The position of the Mexican Government was set forth in a note of its Minister of Foreign Affairs to the Minister of the United States in Mexico, dated May 26, 1879, which reads as follows:
Having informed the President of the Republic of the contents of this note, by his direction I have the honor to make the following reply:
The right which a sovereign State has to concede or refuse to foreigners the privilege of acquiring real estate in its territory is indisputable and universally recognized, as well as to establish a limit to this right when it has been conceded. In the use of that right, in exercise of its sovereignty, Mexico has issued different laws upon the subject, among them that of the 11th of March, 1842, which, on permitting foreigners established and resident in the Republic to acquire and possess city and rural property in the territory, made exceptions of those departments adjoining or fronting other nations, determining that in these foreigners could not acquire real estate without express permission from the Government, and that of the 20th of July, 1863, which prohibits native or naturalized citizens of the adjoining countries to acquire public lands in the States of the Republic bordering on those countries.
Mexico, upon issuing these laws, has not infringed the stipulations of article 3rd of the treaty of 1831 nor has it violated the spirit which prevails in that convention, because nothing is established in them which should be considered as contrary to the liberty, privileges, and security guaranteed to North American [Page 648] citizens in order that they may go with their vessels and cargoes to any market, port, or river of the Republic to which other foreigners are admitted, nor are said citizens prevented from renting houses and warehouses for the purposes of their commerce, nor are they prevented from dealing in all kinds of products, manufactures, and goods, nor are they obliged to pay higher duties, imposts, or emoluments than are paid by the citizens of the most favored nations, nor is there anything, in a word, conceded to the latter with respect to navigation and commerce which is denied to North American citizens.
On the other hand, the equality of privileges, exemptions and rights with the most favored nations, stipulated with the United States in Art. III of the treaty of 1831 refers to navigation and commerce; but although it should extend to another subject (capitulo), that equality should be understood to be under circumstances also equal, and with reference to the acquisition of lands in the frontier states, it can not be sustained that the United States which adjoin Mexico are in the same condition as the nations of Europe or of South America, for instance.
I should at the same time call the attention of your excellency to the exception contained in the law of July 20, 1863, which is the most peremptory disposition referred to by the clause of the contract which gave rise to this note, which should not be considered as referring exclusively to the citizens of the United States, as it also comprehends those of the neighboring Republic of Guatelama, having the same conditions of boundary with Mexico; hence there is not nor can there be any justifiable motive for the Government of the United States to consider the prohibition established by the aforesaid law as an exclusion injurious to its citizens, and which refers to the nations bordering on the Republic.
It was in reply to this exposition of the law by the Mexican Government, which had been called forth by previous representations on the part of the United States, that the instructions above quoted, of subsequent date, were sent. They were duly communicated to the Mexican Government. On August 20, 1879, the Minister of the United States in Mexico wrote to the Department as follows:
On the 17th ultimo I communicated to the Mexican Foreign Office in a note of that date, the substance of your despatch No. 646, of June 23rd, relating to the prohibition to citizens of the United States from acquiring real estate and public lands in the Mexican border States.
Up to this date I have received no acknowledgment of my note and I regard it as highly probable that no reply will be made thereto, neither have we any reason to expect that the policy of the Mexican Government on the subject will be changed, as a result of the protest you have directed me to make.
The forecast of the American Minister proved to be correct and the remonstrance of June 23, 1879, remained unanswered. The law also remained unaltered.
The aide-mémoire expresses the belief that the present instance is the first one in which a power, being a party to a reciprocal commercial treaty guaranteeing most favored nation treatment “in all that concerns commerce and navigation,” has ever been placed by the other contracting party at a disadvantage, as compared with nontreaty countries, “in matters which, in the treaty, are made the subject of reciprocal concession.” This passage seems to blend two questions which are by no means interdependent. As is observed in the Department’s note of the 16th instant, if the contracting parties have dealt with a certain subject by means of an express reciprocal agreement, it is hardly open to either party to assert that the adjustment thus made is not fair and equal, or that it is open to objection because it falls short of most favored nation treatment.
In the animadversions of the aide-mémoire upon discriminatory legislation the Department desires to express a general concurrence. It must, however, be admitted that discriminations of one kind and [Page 649] another very widely prevail, and that it is often necessary to deal with them in a tolerant spirit in order that greater causes of irritation may be avoided. Perhaps in no case is it more essential to take this moderate view than in that of the ownership of lands.
The aide-mémoire quotes a resolution of the House of Representatives of the United States on December 13, 1911, calling for the termination of the then existing commercial treaty between the United States and Russia because of the refusal of the Russian Government, as the resolution declared, to admit American Jews generally to that country. This resolution, it may be observed, was never communicated to the Russian Government and never assumed an international character. The passage quoted in the aide-mémoire does not appear in the resolution adopted by Congress; and notice was, as the aide-mémoire correctly states, given to Russia of the intention to terminate the treaty on the ground that it was “no longer fully responsive, in various respects, to the needs of the political and material relations of the two countries.” The treaty was subsequently terminated, but, with this exception, the previous conditions continue and the discrimination complained of remains unchanged.
The aide-mémoire refers to the California statute as discriminating against Japanese subjects “in the matter of ownership of lands and houses.” The distinctions on this subject have been pointed out in the Department’s note of the 16th instant, in which the meaning and effect of the clauses of the existing treaty are fully set forth. It may be repeated that the statute contains no discrimination against Japanese as such, but applies equally to all aliens not eligible to citizenship.
The Department, following the example of the aide-mémoire, has forborne to enter into the discussion of the various and sometimes intricate questions affecting corporations as compared with individuals. These are questions peculiarly appropriate for judicial examination; for, while it is held that a corporation is a “citizen” of, or has its “domicile” in, the State by which it was created, even though a majority of its stockholders may be citizens of other States or countries, yet these are matters more or less of legal regulation, and the rights, privileges, and immunities of corporations are by no means coextensive in all matters with those of natural persons.
The aide-mémoire refers to a suggestion that the question of alien ownership of land in the several States of the United States is beyond the reach of the treaty-making power. The Department desires only to say that such a suggestion has not come from the Government of the United. States. The aide-mémoire is correct in its statement that this subject has been dealt with by the treaty-making power, and that the provisions of the treaties on the subject have been upheld by the courts.
The aide-mémoire quotes from an instruction of this Department of March 5, 1875, in which the Secretary of State of the United States declared, in a case arising in Brazil, that the Imperial Government at Rio de Janeiro must be held accountable for any injury to the person or property of a citizen of the United States committed by the authorities of a Province. The Department is not disposed to question the correctness of this view, but would call attention to the fact that, in the instruction referred to, the statement was made that, as the governors [Page 650] of the Provinces in Brazil were appointed by the Imperial Government, “the latter may be regarded as specially responsible for their acts in all cases where the law of nations may have been infringed, and justice may be unobtainable through the courts.”
As is stated in Department’s note of the 16th instant, the subjects of His Imperial Majesty will 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, held under treaty or otherwise, and this Government will stand ready at all times through its proper officials to use its good offices to secure the prompt and efficacious determination of such suits. Such appears to be the proper and feasible course in the present matter, in which questions of various kinds may arise, in respect of which it is scarcely possible to forecast the appropriate forms of action. The courts of the United States, as is well known, deal only with actual questions, with actual infractions of rights, and not with infractions merely mooted or apprehended.
The California School case and the Horcon Ranch case presented questions of a different order from those now under consideration. In the California School case a single and actual treaty question, not relating to a matter of property, had arisen and was ready for adjudication. In the Horcon Ranch case a suit in equity was brought by the Government of the United States against an irrigation company for the purpose of preserving an international boundary to which the United States was directly a party. The United States is no doubt interested in the maintenance of all its treaties; but, as the numerous adjudicated cases cited in the aide-mémoire clearly show, questions concerning private titles to land, whether such titles be assured by treaty or not are adjudicated upon the suit of the parties in interest without any interposition on the part of the Government of the United States.
Not only is this the practice, but it is greatly to the advantage of individual suitors that it is so. As Governments not infrequently differ in the interpretation of treaties, the private individual, if dependent for judicial protection upon the motion of the Government within whose jurisdiction he asserts that his treaty rights are denied, might be deprived of an effective remedy altogether, in case that Government should hold that the treaty was not violated. Moreover, the individual suitor, in presenting his arguments and allegations, is not restrained by the responsibility which necessarily attaches to the declarations and contentions of an immediate party to the international compact. His dependence upon the action of such a party would hamper his efforts and diminish the opportunity for redress.
For these reasons the judicial defense of private rights, and particularly of rights of private property, even where they may have vested under a treaty, is left to the suit of the individuals concerned. In the present instance, however, this Government has offered to go beyond the usual practice and to use its good offices to facilitate the progress of the judicial procedure, out of deference to the susceptibilities of a friendly power to whom this Government wishes ever to be bound by the closest ties of amity and respect.
Washington , July 16, 1913.