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Some Legal Aspects of the Japanese Question

Published online by Cambridge University Press:  06 June 2017

Raymond Leslie Buell
Raymond Leslie Buell*
Affiliation:
Harvard University
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Extract

It would be difficult to find a better illustration of the dependence of politics upon law than in America’s Japanese problem. Our attitude toward the Oriental has been crystallized in legislation. And much of the popular prejudice against the Japanese arises out of a conflict of legal principles over which they as individuals have no control. This article does not propose to discuss the policy which should be followed in regard to Japanese immigration or to the treatment of Japanese residents already here. But it merely attempts to set forth the legal aspects of the problem which must be considered before it can really be solved.

Type
Research Article
Information
American Journal of International Law , Volume 17 , Issue 1 , January 1923 , pp. 29 - 49
Copyright
Copyright © American Society of International Law 1923

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References

1 Cf. Bluntschli, Lehre vom Modernen Stat, Vol. I, p. 3.

2 In re Saito, 62 Fed. 126; In re Yamashita, 30 Wash. 234, 70 Pac. 482; In re Buntaro Kumagai, 163 Fed. 922; Bessho v. U. S., 178 Fed. 245.

3 Chinese Restriction Act of 1882, 22 Stat. 61, ch. 126, sec. 14.

4 This phrase was originally used in the first naturalization statute, approved March 26,1790, 1 Stat. 103, ch. 3.

5 The right of naturalization was first extended to negro aliens in the act of July 14,1870.16 Stat. 256, ch. 254, sec. 7.

6 18 Stat. 318, ch. 80, par. 14.

7 Sections 2165-2169 of the Revised Statutes are still in force unless expressly repealed by later changes in the naturalization laws. U. S. v. Meyer, 170 Fed. 983; In re Alverto,198 Fed. 688; In re Geronimo Para, 269 Fed. 643; Bessho v. U. S., supra; In re Rallos,241 Fed. 686; In re Lampitoe, 232 Fed. 382; V. S. v. Balsara, 180 Fed. 694; Sato v. Hall, 34 Calif. Appellate Decisions, 678.

8 See the brief, “ Japanese Naturalization Case, October Term, 1916, No. 222, Tdkao Ozawa v. the United States. On a certificate from the U. S. Circuit Court of Appeals for the Ninth Circuit.” On racial origin, cf. Griffis , W. E. , The Mikado, Institution and Person,(1915), p. 9; K. S. Latourette, The Development of Japan (1918), pp. 13-14. Google Scholar

9 See Judge Lowell's learned opinion, In re HaUadjian, 174 Fed. 834, 842.

10 Nevertheless Chinese were declared ineligible to citizenship before they were barred by statute. In re Ah Yup, 5 Sawy. C. C. 155; cf. also In re Gee Hop, 71 Fed. 274.

11 40 Stat. 542, ch. 69.

12 Survey of Education in Hawaii, Dept, of the Interior, Bureau of Education, Bull. No. 16,1920, p. 32.

13 174 Fed. 834, 836.

14 205 Fed. 812, 815; also Ex parte Dow, 211 Fed. 486.

15 In re Geronimo Para, supra; Petition of Eas-urk Ernsen Chart, 278 Fed. 207; ef. also In re Bhagat Singh Thind, 268 Fed. 683; and the letter of Wilson , W. B. Google Scholar , Secretary of Labor to Senator Phelan, Cong. Record, Feb. 19, 1921, p. 3660; and Sato v. Hall, supra.

16 1910 Census, Vol. I, p. 1070; apparently these figures are not given in Volume I of the 1920 census.

17 Ozawa v. the U. S., No. 1—Oct. Term, 1922, “ Supreme Court of the United States” ;Yamashita and Kono v. Hinkle, No. 177—Oct. Term, 1922, “Supreme Court of the United States” ; both decided Nov. 13, 1922. The decision in the Ozawa case is printed, infra.,p. 151.

18 In re Rodriguez, 81 Fed. 337.

19 In re Najour, 174 Fed. 735; Dow v. U. S., 226 Fed. 145.

20 In re Halladjian, supra.

21 In re Mozumdar, Akhay Kumar, 207 Fed. 115.Google Scholar

22 V. S. v. Balsara, supra.

23 Ex parte Shahid, supra.

24 In re Po, N.Y. S. 383.

25 In re Alverlo, 198 Fed. 688, where a quarter-breed Spaniard and Filipino was excluded.Also In re Lampitoe, supra.

26 Although Art. I, sec. 8, par. 4 of the Constitution authorizes Congress to “ establish a uniform rule of naturalization,” a treaty conferring the right of naturalization undoubtedly would be constitutional. Congress also has the power to regulate foreign commerce, but we have negotiated dozens of treaties of commerce and navigation. Naturalization has been conferred on Indians by treaty, Wilkins, Elk v. , 112 U. S. 94, 100; Wiggan v. ConoUy, 163 U. S. 56. The former cites a large number of treaties with Indian tribes in which naturalization is conferred. Citizenship was conferred on the inhabitants of the Louisiana territory by the treaty of 1803 between France and the United States, Moore, Digest of International Law, Vol. III , p. 313. Cf. the Treaty of Guadalupe Hidalgo of 1848, and the Alaskan treaty of 1867, Moore, ibid., p. 319. See also Van Dyne, Naturalization (1907), “ Naturalization by Treaty,” p. 273 S.Google Scholar

27 Children born of parents ineligible to citizenship in this country are nevertheless citizens of the United States, United States v. Wong Kim Ark, 169 U. S. 649.

28 “ A child is a Japanese if his or her father is a Japanese at the time of his or her birth.” Law of Nationality, No. 66, Article I, April 1, 1899; de Becker, Civil Code of Japan, Vol. 3,Appendix I.

29 For the origin of these conflicting theories, see SirMaine, Henry, Ancient Law, Ch. IV.Google Scholar

30 Cf. sec. 1993 of the Revised Statutes, and the Law of 1907,34 Stat. 1228, which provides that a child born abroad of American parents loses the protection of the United States unless he declares his intention of becoming a resident, etc., of the United States.

31 Borchard, Diplomatic Protection of Citizens Abroad, sec. 255.

32 There is considerable confusion in regard to the Japanese military service. Cf. Porter,The Full Recognition of Japan (1911), p. 220; McGovern, Modem Japan, (1920), p. 215; Japan Year Book, 1920-1921, p. 683-684; G. Ogawa, Conscription System in Japan, (1921),Part I.

33 Japanese Immigration, Hearings of the House Committee on Immigration and Naturalization on the Pacific Coast, Government Printing Office, 1921, p. 1189.

34 Japan Year Booh, 1921-1922, p. 293.

35 This law was first published in English in California and the Oriental, Report of the California State Board of Control (1920), pp. 186-187. I have followed the translation given in Japanese Immigration, Hearings, cited, p. 711.

36 Expatriation may be effected either under law or under a treaty. In England, the Naturalization Act of 1870 provides that any person who, by reason of birth within the realm, is a natural-born subject, may renounce such citizenship if he wishes to do so. 33 Viet., ch. 14, sec. 4. The United States has negotiated some seventeen “ naturalization”treaties with foreign nations, each of which provides that when a national of one state chooses to become naturalized in the other, the first nation agrees to relinquish its claim to allegiance. See Malloy, Treaties and Conventions of the United States, index, “ Naturalization Conventions.”

37 See Moore, Digest, Vol. I l l , pp. 518-551; for the subject of expatriation, see ibid., Vol.I l l , pp. 552-735.

38 Letter from the Consulate General of Japan, August 14, 1922. It is very interesting to note that with a growing knowledge of this expatriation law, an increasing number of Japanese are taking advantage of it. In 1917 there were only seven Japanese who became expatriated. In 1921, there were 58, and in the first six months of 1922, there were 56.

39 For these laws, see Alien Land Laws and Alien Rights, House Doc. 89, 67th Cong.,1st sess., pp. 32-34.

40 1913 California Statutes, ch. 113, p. 206; Arizona, Session Laws, 1921, ch. 29, p. 25;Washington Constitution, Art. 2, par. 33, Session Laws, 1921, ch. 50, p. 156.

41 The Constitution of the State of California (Art. I, sec. 17), adopted in 1879, originally gave persons eligible to citizenship the same rights in regard to property as citizens. Norris v. Hoyt, 18 Cal. 217; State v. Smith, 70 Cal. 156. Section 671 of the California Civil Code later extended these privileges to all aliens, by declaring, “ Any person, whether citizen or alien, may take, hold, and dispose of property, real or personal, within this State.” The land laws of 1913 and 1920 returned in a sense to the rule laid down originally in the State constitution. The history of the anti-Japanese movement on the Pacific Coast is traced in R. L. Buell, “ The Development of the Anti-Japanese Agitation in the UnitedStates,” two parts, Political Science Quarterly, December, 1922, and March, 1923.

42 1921 California Statutes, pp. lxxxvii-xc. This act provides: (1) Aliens eligible to citizenship may acquire, hold, and transmit real property in the same manner as citizens of the United States; (2) all aliens “ other than those mentioned in section one” may acquire property in the manner prescribed by any treaty now existing between the United States and the country of which the alien is a subject, and not otherwise; (3) any corporation of which a majority of members are aliens ineligible to citizenship, or in which a majority of issued capital stock is owned by such aliens, may acquire land only as prescribed by treaty;(4) a Japanese cannot act as guardian of a minor's estate which consists of property which the Japanese himself cannot hold; (5) every “ colorable” transfer of real property is prohibited,if made to evade the law, and a presumption to that effect exists if (a) the land is paid for by a Japanese although some one else buys the property, (b) or if the property is acquired by a corporation, the controlling shares of which are paid for by Japanese but held by citizens of the United States. Any land acquired in violation of this act, shall escheat to the State of California. Section 10 of the Act punishes conspiracies to violate it with imprisonment up to two years and fine up to $5,000. This section was attacked on the ground that the act did not declare such conspiracy to be a crime. But it was sustained as it stood in In re Akado (May 16, 1922), 63 Cal. Dec. 577.

43 Sections 1 and 3 of Article I, and Article XIV, Treaty of 1911, Foreign Relations of the United States, 1911, pp. 315-319.

44 This was the official argument, printed in the pamphlet distributed to voters in regard to initiative measures, against the anti-Japanese measure of 1920.

45 274 Fed. 841, 846. The court merely followed out the Supreme Court's past distinction between commerce and agriculture or manufacture. See U. S. v. E. C. Knight, 156 U. S.1; Kidd v. Pearson, 128 U. S. 1; Capital City Dairy Co. v. Ohio, 183 U. S. 238; Delaware,Lackawanna and Western R. R. Co. v. Yurhonis, 238 U. S. 439.

46 For the treaty with Italy, see Malloy, Treaties and Conventions of the United States,p. 969.

47 Heim v. McCall, 239 U. S. 175; Patsone v. Pennsylvania, 232 U. S. 138.

48 Many Japanese wrongly assume that this legislation is confiscatory, see A. Kinnosuke,“ What Japan Wants,” Nation, February 2, 1921.

49 states do not violate the treaty of 1911.53 This conclusion has been reached 19 The California land law may possibly exclude all non-resident aliens from land ownership,except by treaty, for they are not eligible to citizenship if living abroad. Cf. McMurray,“ Legal Aspects of the Japanese Question,” The Pacific Review, December, 1920.

50 “ Protest of Japan against the Land Laws of the State of California,” Foreign Relations of the United States, 1913, pp. 625-653; ibid., 1914, pp. 426-434. In its final note, the Japanese Government said, “ It is a matter of great regret . . 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.” U. S. For. Rel., 1914, p. 433.

51 Moore, Digest of International Law, Vol. VI, p. 702; U. S. For. Rel. 1913, p. 647.

52 In a note of February 21, 1911, Baron Uchida admitted to Secretary Knox that the treaty of 1911 did not control land tenure, because he said, “ In return for the rights of land ownership which are granted Japanese by the laws of the various States of the United States . . the Imperial Government will by liberal interpretation of the laws 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.” U. S. For. Rel. 1913, p. 643.

53 Although the treaty of 1911 does not encroach upon the powers ordinarily reserved to the states in regard to land tenure, (cf. U. S. v. Fox, 94 U. S. 315), the Federal Government has the power to negotiate a treaty which would give Japanese the right to own agricultural land in California or any other State in the Union. Cf. Society for the Propagation of the Gospel v. New Haven, 8 Wheat. 464; Ware v. Hylton, 3 Dal. 199; Chirac v. Chirac, 2 Wheat.259; Geofroy v. Riggs, 133 U. S. 258; Hauenstein v. Lynham, 100 U. S. 483; On v. Hodgson,4 Wheat. 453; Corneal v. Banks, 10 Wheat. 181; Fairfax v. Hunter, 7 Cranch, 627; Hughes v. Edwards, 9 Wheat. 489; Wunderle v. Wunderle, 144 111. 40; People v. Gerke, 5 Cal. 381;Blythe v. Hinckley, 127 Cal. 431, also 180 U. S. 333; In re Turner's Estate, 196 Pac. 807;Missouri v. Holland, 252 U. S. 416. See also E. S. Corwin, National Supremacy (1913),and Senator P. B. Kellogg's address, Reports of the American Bar Assn., 1913, pp. 331-392.

54 Terrace v. Thompson, (July 25, 1921), 274 Fed. 841; Porterfield v. Webb, (December 19,1921), 279 Fed. 114. For a comment on recent decisions affecting these laws, see M. E.Harrison, “ Alien Land Legislation on the Pacific Coast,” American Bar Association Journal,August, 1922; and “ Comments on Cases,” 10 California Law Review, passim, which discuss these decisions more from the standpoint of private law.

55 Yick Wo v. Hopkins, 118 U. S. 356; U. S. v. Wong Kim Ark, supra; Lau Ow Bew v. U. S., 144 U. S. 47; Lem Moon Sing v. U. S., 158 U. S. 538; Ex parte Virginia, 100 U. S.339; Missouri v. Lewis, 101 U. S. 22; Pace v. Alabama, 106 U. S. 583.

56 Yick Wo v. Hopkins, supra.

57 Mo. Pacific B. R. Co. v. Mackey, 127 U. S. 205; Walston v. Nevin, 128 U. S. 578; Barbie,r v. Connolly, 113 U. S. 27; Bell's Gap R. R. Co. v. Pa., 134 U. S. 232; Clark v. Kansas City,176 U. S. 114; St. John v. New York, 201 U. S. 633; Gulf, etc. R. Co. v. Ellis, 165 U. S. 150;Home Insurance Co. v. N. Y. State, 134 U. S. 594.

58 Calvin's case, Coke's Reports (J. H. Thomas ed., 1826), Part VII, p. 32.

59 Coke on Littleton, (Day's edition, 1812), ch. 1, sec. 1, 2b.

60 For the common law rights of aliens, see Coke, cited; and the cases cited in T. A.Walker. History of the Law of Nations, (1899) p. 121; Fairfax v. Hunter, 7 Cranch 620; Geofroy v. Riggs, 133 U. S. 265; Blackstone, Commentaries (Lewis' edition) Book I, pp. 331 ff.; Kent, Commentaries, Vol. II, p. 71.

61 Osterman v. Baldwin, 6 Wall. 121; Fairfax v. Hunter, supra\ Craig v. Leslie, 3 Wheat.589; Craig v. Radford, 3 Wheat. 599; Cross v. De Valle, 1 Wall. 13; Hauenstein v. Lynham, 100 U. S. 484. Cf. Suwa v. Johnson, 203 Pac. 414; and Mork v. Mellett, 205 Pac. 664.

62 7-8 Viet., ch. 66, secs. 4 and 5.

63 33 Viet., ch. 14, sec. 2. Cf. 32 Hen. 8 ch. 16, sec. 13, and Woodfall, Landlord and Tenant, p. 91; and Earl of Halsbury, The Laws of England, Vol. I, “ Rights and Duties of Aliens” ; Pollock and Maitland, History of English Law (1895), Vol. I, pp. 442 ff.

64 239 U. S. 195, 198.

65 237 U. S. 580, 583; cf. Blythe v. Hinckley, 180 U. S. 333, 340; and Sullivan v. Kidd, 254 U. S. 433.

66 232 U. S. 138. Cf. Central Lumber Co. v. South Dakota, 226 U. S. 157; Tragesserv. Grey,73 Maryland 250, 9 A. L. R. 780; Wunderle v. Wunderle, supra.

67 274 Fed. 849-850.

68 For the English law on this point, see authorities cited in footnote 60.

69 274 Fed. 851; cf. State ex. rel. Winston v. Morrison, 18 Wash. 664; State ex. rel. Winston v. The Hudson Land Co., 19 Wash. 85; but cf. also Jeffres v. Easton, 113 Cal. 345.

70 For a suggested remedy of this defect in our federal system, see R. L. Buell, “ The New States-Rightism,” Nation, August 17, 1921.

71 A committee of the American Bar Association once questioned the constitutionality of such a law. See Reports American Bar Association, 1892, pp. 406-407. But President Taft rebutted its seven objections, in The United States and Peace, p. 59 ff. The Supreme Court in Baldwin v. Franks, 120 U. S. 678, 683, ruled in favor of the constitutionality of such legislation.

72 Japanese guardianships established in good faith were upheld by the Superior Court of Riverside in People of the State of California v. Yukiehi Harada et al., Superior Court of the State of California in and for the county of Riverside, No. 7751. Filed, County Clerk of Riverside, decided October 22, 1918. But other courts severely scrutinized the manner in which Japanese aliens fulfilled their trusts. If the land thus held was not used strictly for the benefit of the minor, the guardianship was dissolved. See the cases reported in Hearings,cited, 873 ff.

73 In re Estate and Guardianship of Yano, California Decisions, May 5, 1922, No. 3348,p. 520.

74 He cited the case of Patsone v. Pennsylvania, 232 U. S. 138.

75 Although such portion cannot be attached before delivery begins or after it is made.

76 Cf. secs. 5, 9, and 10

77 279 Fed. 117, 119, 123, decided December 20, 1921. See also “ The Status of a Cropper.” (Notes) 36 Harvard Law Review, 209, December, 1922. This case has been appealed to the U. S. Supreme Court, along with Porterfield v. Webb. In the case of In re Yano, a petition for rehearing was denied.

78 1 Fed. 481, 509. Cf. Coppage v. Kansas, 236 U. S. 1, 14.

79 239 U. S., 33, 39, 41, 43.

80 Before the passage of the 1920 land law in California, State political leaders admitted that the State had no power to prevent the use of land by Japanese. See Governor Stephen's letter to Secretary Colby, California and the Oriental, Report of the State Board of Control,p. 13; also Chester H. Rowell, “ California and the Japanese Problem,” New Republic,September 15, 1921.

81 Ex parte Terui, 200 Pac. 954; Ex parte Kotta, 200 Pac. 957.

82 See V. S. McClatchy “ Japanese in the Melting Pot,'1 Annals, cited, pp. 31-32. Hearings,cited, pp. 926 ff., 976.

83 Japan Review, December, 1920; Survey of Education in Hawaii, p. 112.

84 1921 California Statutes, ch. 683.

85 Marshall v. Donovan, 10 Bush (Ky.), 681; Ward v. Flood, 48 Cal. 36; Berea College v.Kentucky, 211 U. S. 45; Freund, Police Power, secs., 266, 698.

86 California and the Oriental, pp. 94-96.

87 MeCready v. Virginia, 94 U. S. 391; Patsone v. Pennsylvania, supra; Geer v. Connecticut,161 U. S. 519; Manchester v. Massachusetts, 139 U. S. 240; Ex parte PoweU, 70 Fla. 363;People v. Setunsky, 161 Mich. 624. Cf. also Consanti v. Darwin, 102 Wash. 402. However,in In re Ah Chong, 5 Pacific Coast Law Journal 451, also 2 Fed. 733, 737, the federal court overthrew a California law of 1880, which prohibited aliens “ incapable of becoming electors”from fishing in the waters of the State, on the ground that it violated the equal protection of the laws, guaranteed by the fourteenth amendment.

88 1915 Cal. Stat., ch. 417. The constitutionality of such statutes has been upheld in Atkins v. Kansas, 197 U. S. 207, and in Heim v. McCall, 239 U. S. 175. There are a few occupations from which aliens may be excluded, involving an oath of allegiance, etc. See “ The Legal Status of Aliens,” Immigrants in America Review, March, 1915.

89 It should be reiterated that a discussion of the wisdom of the policy pursued by the United States toward Japanese residents is beyond the scope of this article. But the writer does not wish any part of it to be construed as favoring such a policy. On the contrary, he believes that it intensifies the Japanese problem on the Pacific Coast, and that it injures the relations of the United States and Japan. See R. L. Buell, The Washington Conference,(1922), p. 302 ff.