The Hawaiian Gazette

Extracts From Correspondence Between Japan and Hawaii.

MINISTER COOPER'S EFFORTS

Letters From Count Okuma and the Replies.

No Claim Made By Japan-Asks Recognition of Principles of Indemnification-Offer to Arbitrate.

For several weeks past items of news bearing on the Japan-Hawaii difficulty have appeared in San Francisco papers and purporting to come from officials at Washington. The fact that the press of Honolulu has been denied information by the Foreign Office here has made the appearance of these items in the foreign press the more aggravating to the public generally and the reporters particularly.

It has been mooted for some time that it has been the intention of Minister Cooper to make public all matters connected with the case, and that he has been waiting for a communication from Washington before doing so. This communication was expected by the Australia, but it failed to arrive, and the Minister concluded to wait the arrival of the Moana. His plans were evidently changed again on reading the newspaper item concerning this Government's offer to arbitrate, for yesterday morning he notified the press to meet him in his office at 11 o'clock. As a preface Minister Cooper said:

"The correspondence opened with a protest from H. I. J. M.'s Minister Resident Shimamura at the action of the Hawaiian Government in rejecting certain immigrants who came by the Shinshiu Maru. In fact, almost the entire correspondence," continued the Minister, "has been carried on with reference to this particular ship, although the other steamers have been mentioned incidentally, as the facts are the same in the three cases.

"Minister Shimamura's official protest came to me on March 20th, and occurred through the captain of the Shinshiu Maru notifying him that the immigrants were to be taken back on his ship. The Minister based his protest upon the stipulation in the treaty between the two countries. After a preliminary correspondence, I replied to his protest by a letter dated April 2d.

"In this I announced the position of the Government and gave him the reasons why the immigrants by the Shinshiu Maru and Sakura Maru were not allowed to land. If you will remember, these immigrants were of three classes: First, those who had contracts in writing, with the immigration companies, for labor in this country and who had no funds in their possession.

"Second: Those who had a memorandum of agreement with the Kobe Immigration Company, the Hiroshimo Immigration Company, or the Morioka Immigration Company.

Third: Those who came independent of any immigration company.

…As to the first class," said Minister Cooper, "previous to the arrival of the Shinshiu Maru, W. J. Gallagher, who represented himself as being associated with the Kobe Immigration Company, called here and stated that the usual procedure had not been complied with, and asked that the immigrants might land. This request was denied, because they were not coming under the rule provided for in Section 1 of Act 66, of the laws of the Provisional Government. When the steamer arrived, it was found impossible to make a proper investigation on the steamer, so the immigrants were landed at Quarantine Station.

It was then found that 146 immigrants had contracts, to perform labor in this country, which had been executed previous to their leaving Japan. It also appeared that the passage of these immigrants had been prepaid by the company and that they were entirely without funds.

All of these were refused landing, because their contracts had not been approved by the Board of Immigration. Of the entire number of immigrants but 37 were permitted to land for the reason of their having approved contracts.

"As to those of the second class, there were 317 immigrants on board who were in possession of $50 each, but denied the right to land for the reason that they had been recruited by the immigration companies, with whom they had made a memorandum of agreement, which, among other matters, contained a covenant on behalf of the immigration companies, through their managers, that they would secure employment for the emigrants on their arrival in this country. The ruling on this point was to the effect that it was an unlawful undertaking contrary to the provisions of Section 1 of Act 17, Laws of 1895. Exceptions, of course, were made to those who had been here before and to females having relatives here.

As to the third class, those who came independently of any company and possessed the necessary qualifications to land were permitted to do so. As to those who came by the Sakura Maru, there were 163 who possessed memorandas of agreement with the Morioka Immigration Company similar to those who came by the Shinshiu Maru, and the same ruling was made and the same exceptions to the rule. The policy of this Government has continued on lines heretofore set forth to representatives of your Government."

I called attention to a dispatch to Minister Shimamura's predecessor, Mr. Shimizu, in which it was said that 'this Government feels at liberty at all times to limit or suspend immigration, especially that conducted by private parties.' This was not done on account of prejudice against Japanese in pursuance of a desire on the part of this Government to control the influx of immigrants who were to be employed as laborers.

"A few days later, April 6th, I think, Minister Shimamura replied, and after expressing the usual felicitations, said that:

"'In Japan's dealings with Hawaii, small as it is, has been and will continue to be of that high order of conduct and courtesy with which it deals with the more powerful nations.' Further along the Minister stated that the matter would have to be submitted to his Government for determination, but he continued to point to what he believed was a violation of the treaty, for he said: Referring to the immigrants of the first class, Although they may not have complied technically with every requirement of the Board of Immigration, yet they have complied with the spirit of it. Taking a larger view of the matter,' continued Minister Shimamura, 'would it not have been best not to have imposed upon the ignorant people after they have broken up their homes and sold their effects, only to be rejected here, simply because they have not complied with the Board of Immigration? You have been misinformed,' continued the Minister, 'regarding the second class, as to the nature of that memorandum of agreement. It was the result of the general laws of the Japanese Government pertaining to all emigrants from Japan, so as to provide against what might be serious suffering of Japanese emigrants in this country. This regulation should have the approval of your Government as providing a means of support for the emigrant after he arrives here. This class came, not as contract labor, but as free immigrants. Having presented the required $50, in accordance with the treaty, they should have been permitted to land.

"'I cannot see,' continued Minister Shimamura in this same letter, 'that a distinction should be made between Japanese who have resided in this country and those who have not."

"Following this," said Minister Cooper, "he deals with our proposition to suspend immigration when conducted by private parties. He contended that the Government has not the right to limit nor modify except by an alteration of the treaty.

"Under date of Tokio, April 19th, and received by me at the hand of Minister Shimamura on May 11th, was a letter, written by Count Okuma, Japanese Minister of Foreign Affairs, in which he recites the fact of the nature of the emigrants by the Shinshiu Maru on April 9th. In this communication Count Okuma informs this Government that he has given thoughtful and deliberate consideration to all the questions involved and, although influenced by a friendly desire to accord due weight to every extenuating circumstance, the Government considers that the inhospitable acts complained of were in derogation of the conventional rights of Japanese subjects.

"Directly under the treaty of 1871 and indirectly by application of the most favored nation principle to treaties now in force between Hawaii and other countries, Japanese subjects, absolutely and equally with Hawaiian citizens are

1. At liberty, freely and securely to enter with their ships and cargoes all places, ports and rivers in Hawaii which are open to foreign commerce.

2. They have the right to travel, trade, reside and exercise every profession or industry in all parts of Hawaii.

3. They are entitled to constant and complete protection from the Hawaiian Government for their persons and property, as well as in regard to civil rights.

4. They are also entitled to free and easy access to the courts of justice of Hawaii in prosecution and defense of their rights, in every instance and degree of jurisdiction established by the laws and,

5. They are at liberty, under any and all circumstances, to choose and employ lawyers and solicitors, advocates or agents from any class whom they may see fit to authorize to act for them or in their name.

.In disregard of these rights,' wrote Count Okuma, '400 Japanese subjects, after being confined for some considerable time, and without any judicial determination, without having access to the courts, without having permission to consult with our representative, were ignominiously expelled from the country.

"It is not suggested that similar treatment would, under any circumstances, be meted out to Hawaiian citizens. In fact, the action was based upon the fact that persons concerned were aliens, who, by a statutory fiction, were deemed to be without the territorial limits of Hawaii.

"Count Okuma said, also, that his Government was convinced that Act 17 of 1895 and Act 66 of the preceding year, if correctly interpreted by Hawaiian authorities, is in contravention of the existing treaty between the two Governments. The proper regulation of immigration, he admits is the legitimate exercise of the police power of the State, and reasonable laws on that subject, reasonably administered by Hawaii, will provoke no remonstrance from Japan. In the present case the laws were a reversal of the existing precedents arbitrarily and capriciously enforced, and that the extra judicial proceedings of the Hawaiian authorities were not conclusive, and the refusal of the court appealed to, to intervene was a denial of justice. The conclusion being that the Japanese Government entertained the expectation that this Government will recognize the principle of indemnification and, further, that they ask for the additional assurance that these acts will not be repeated.

"The particulars regarding the amount of the claim, Count Okuma wrote, would be made the subject of a further communication, but I may say here, that the communication has not yet been received.

Mr. Cooper, continuing his conversation, said:

"You will understand that my first letter was not one of argument or defense. It was a mere statement of facts. The correspondence which has followed, has brought out other points, and now this Government has been charged with shifting its policy to suit the occasion.

"I replied to this letter on May 24th, and my answer to the first point in his communication was that the examination of the immigrants was before a competent tribunal, and the decision of the Supreme Court, sustaining the Customs authorities, was founded upon well-established principles, and the result having been arrived at, it is a complete assurance that the immigrants were denied no rights guaranteed them by the treaty. The acts mentioned were reasonable regulations to protect residents of this country against undesirable immigrants, and that the validity of the acts cannot be successfully assailed on the ground that they are in violation of the treaty, as they make no discrimination between the subjects of Japan and any other country. That the provisions of Section 1, Act 66, of the Laws of 1894, are well within the reasonable exercise of the police power of the State, that such laws are necessary to the peace and well-being of a nation. The right to pass such laws is inalienable and well within the laws. I insisted that this Government, in common with other independent nations, maintains the right to protect itself against injurious consequences which would arise, both from unrestricted immigration of individuals, dangerous to the country in its moral, sanitary and economic interests and from an immigration, stimulated beyond its natural course through the enterprise of individuals and companies promoting such immigration from motives of profit, which stimulates emigration, tends to the embarrassment of the labor condition and, indirectly, to the orderly status of the community and, possessing this power, is to be exercised for the protection and security, is clothed with the right to determine the occasion on which the power may be called forth.

"I am not aware," continued Minister Cooper, "that the favored-nation clause in any treaty has ever been construed to this great length, and, at the same time, while not agreeing to the claim of His Excellency, that Japanese subjects have the right to travel, trade, reside and exercise profession and industry in all parts of Hawaii, I should maintain that provision if all treaties between Hawaii and other countries are subject to its constitution and such laws which have been passed by the Legislature.

"It is strenuously denied that the immigrants were entitled to any further consideration of residential rights than was accorded to them."

One of the complaints made by Minister Shimamura was that which referred to the treatment of immigrants while in quarantine, in so far as it related to their being denied the privilege of a conference with their representative or the services of a lawyer.

"In dealing with this phase of the controversy," said Minister Cooper, "I drew his attention to the fact that the Shinshiu Maru arrived here on the 27th of February. The period of quarantine expired on March 10th, and habeas corpus proceedings began the same day, but not until the 17th of March, one week later, was any request received from him to have a personal examination of the immigrants. I remember it very well, for
I had my hat on and was ready to go to quarantine when his message arrived. I stepped to the telephone and told him that I would be glad to have him go over with me in my boat and to meet me at Brewer's wharf. Minister Shimamura kept the appointment, and with him were Attorney Humphreys and the Secretary of the Legation. On arrival at the station, and as I was going into the room to begin the investigation, Mr. Humphreys stepped forward and stated that Mr. Shimamura requested a private and personal investigation. I immediately asked the purport of it, and Mr. Shimamura declined to give it. He and his party then left the station.

"Afterwards I received a letter from Mr. Shimamura, asking for a private and personal investigation, and this was given him. The Japanese Government has stated that immigrants were denied permission to see their representative or to consult a lawyer. I particularly investigated this and found that the immigrants had never asked to see Minister Shimamura, nor did they ask for a lawyer.

"Then there was the contention over taking the immigrants from the ship. In touching this point in my communication, I explained that it was done in order to perform quarantine duties and make the confinement less a hardship. As a matter of fact, it was an act of humanity to the immigrants.

"It is true enough that Hawaii was instrumental in instituting the emigration of the Japanese to this country, but only under a specific understanding, more particularly set forth in the convention entered into between the two Governments in 1886, but in no instance has Hawaii ever sought to effect a colonization by emigrants from Japan, and has ever claimed the right to suspend emigration from Japan when conducted by private parties. There has been no reversal of any precedents heretofore established. The Government has made repeated attempts to prevent the illegal immigration which it has felt satisfied has been in progress for a considerable period, but which until the case of the immigrants of the Shinshiu Maru had been unsuccessful. As a matter of fact, I was in receipt of letters from the agents of two rival immigration companies, informing me of the fact and offering to give bonds for the proper performance of their duties as immigration agents, provided they were given exclusive right to bring the immigrants here. It was on this information that I acted.

"The immigration laws are not in contravention of the treaty," wrote Minister Cooper, "and their enforcement was justifiable. This Government refuses to recognize that any principle of indemnification applies in the premises. In regard to the assurance that the acts of this Government should not be repeated, we claim that we were justified in a former action. If a similar infraction should take place a like action would necessarily follow.

"Following this," said Minister Cooper "I received a request from Minister Shimamura, asking for an interview. I answered this by saying that if the interview was confined to matters in the correspondence, I would be glad to accord it to him, but if other matters were to be brought up, I would insist that they be by correspondence. We had one or two interviews, and, finding that the business was branching out, the interviews were dropped and the negotiations have since been conducted by correspondence.

"Under date of June 4th, Minister Shimamura wrote, inquiring about the extended quarantine. I explained to him that German measles had broken out the day the quarantine period expired, and under the quarantine regulations, it was necessary to continue it. Then came a letter of many pages. We call it here the '78-page letter,' in which the whole matter was reviewed. Referring to the question of the connection of Kinney & Ballou with the case, he said they were advocates of the immigrants.

"The day Minister Shimamura, his Secretary and Mr. Humphreys went with me to the Quarantine Station," said Minister Cooper, "and the Minister asked for the private interview, you will remember, I asked the purport. Evidently there was a misunderstanding, for it seems he understood me to say 'result,' and in this long letter he discusses pretty freely this part of the subject and also the fact of the immigrants being removed from the ship.

He says:

'Your Government is responsible, notwithstanding the laws, if they infringe on international precedents. Having come within the jurisdiction of your courts, they are clearly within the territory of the Republic. I do not mean at all,' wrote Minister Shimamura, 'to enter into a discussion of the nature of the examination of the Customs authorities and whether that examination is final or not. The Hawaiian Government must naturally have responsibility for the fairness and righteousness of examination.'

"Reference was made in this letter to a case in November, 1896, when Chief Justice Judd, acting as a single Justice, decided that a man, with a certificate of deposit on a bank here, was eligible to land, as the certificate of deposit was legal under the act.

"But under a later decision, continued Minister Cooper, "the Supreme Court decided that it has no jurisdiction other than to inquire whether the law has been complied with

"Minister Shimamura, in his letter, stated that the immigrants did not know the decision of the Customs authorities, and that they were returned to the ship through menace and cheat. The Minister said, further:

"But what I wish to know is, why the Hawaiian Government has not taken the trouble to notify us? If you had intimated to us a change in your immigration policy, then these people would not have come. I am sure the Japanese Government will not stop in this matter until it has received the most satisfactory answer.' This was answered by me on June 25th, in which I stated the cause of the extension of quarantine. I also reviewed the connection of Kinney & Ballou and repeated that there had been no request made upon them by the immigrants for a writ of habeas corpus. I stated that Kinney & Ballou, when the case was in court, repeatedly refused to answer my question as to who retained them. This supports the previous contention that the immigrants had not asked to see counsel and consequently were not denied the right to see attorneys. They never asked and were never denied. I stated that his complaint that he was denied a private examination amounted to nothing, because he had been granted the request.

"Regarding the jurisdiction of the Supreme Court, I stated that the Legislature had the right to establish the tribunal as it may see fit, and that the decision is final. The fact remains that the petition of S. M. Ballou was not only heard on behalf of the immigrants, but the decision was to the effect that the Supreme Court has decided that all proceedings relative to their rights of immigrants to enter a country have been properly conducted, so that, after all has been said, nevertheless they have had their day in court.

"I wrote him that I understood from his letter that he did not intend to discuss the merits of the proceedings before the Customs authorities. Regarding the admission of women, having relatives here, I stated that this was in accordance with a previous ruling by this department, and as to men who previously resided here, they were admitted for the reason that the Government considered their status different, and did not care to raise the question of vested rights.

"The Japanese Government contends that we cannot go behind the simple possession of the $50. The law construes it differently: in this case possession' is synonymous with ownership. I cannot give you money merely to be handed back to me as you step off the gangplank. The money these men had, it appears, was handed them to show the Customs official, an act in itself sufficient to warrant their being sent back. I contend that the burden of proof is on the immigrant, not upon the Government; he is to prove ownership of money. I understand that the memorandum which these men carried, comes within the purview of Section 1, Act 17, Laws of 1895, and the mere fact that it might, under certain circumstances, be optional for the immigrant to avail himself of the employment guaranteed, does not take it
out of the provisions of Section 1, Act 17. It became very apparent, by the guarantee given by the immigration company, that it would do everything in its power to supply employment for the men, could not be carried out by it.

It was well known to the Executive that the planters had been supplied with all the labor necessary, and that through the proper channels more men would mean an over-supply. It is, further, clearly shown that these immigrants were all agricultural laborers, and as such did not come within the terms of the treaty of 1871, which clearly limits the immigration of the Japanese subjects to the merchant class. This interpretation of the treaty has been adopted by the Japanese authorities regarding the emigration of Hawaiian citizens, and the mere fact that heretofore the immigrants from Japan of this character have been allowed to enter this country is no answer to the question. The position is, in fact, limited in its scope, and does not bind this country to accept immigrants from Japan of the class in which the person in question belongs.

"This is more conclusively shown that when the immigration of this class was about to begin it was found necessary to enter into a convention under which the immigration Japanese subjects was successfully carried on to the satisfaction of this Government. Emigrants who have left Japan, not under the auspices of the convention, but under contracts for service, the form of which has been approved by the Board of Immigration, may well be considered to be voluntary emigrants, coming neither under the provisions of the treaty or the convention. This Government was glad to welcome such subjects of Japan to this country as have come under the provisions of the convention and also such emigrants as have come under the auspices of the Board of Immigration, and, while it is probably true that a large number of immigrants have come to this country in violation of our laws, and that the immigration companies are really the culpable ones, still it became a matter of necessity that the action now complained of should be taken by this Government, in order to prevent a large influx of immigrants who might disturb the economic and political conditions of the country.

"Hawaii has no intention or desire to suspend immigration with Japanese subjects when they come under the treaty or under the auspices of the Board of Immigration or the convention. It is a matter of sincere regret that the action now complained of was considered necessary, but the Government can take no other view than that it was perfectly justified in taking the step which resulted in the rejection of so many Japanese subjects.

I wrote Minister Shimamura that I had no knowledge of the charge that men were put aboard by menace and cheat. If this was the case, it was by men unauthorized to do so. If known to be a fact, the persons would receive severe condemnation.

I understand from Mr. Shimamura's letter that the real objection by his Government is that there has been a severe change of policy in regard to the interpretation of Act 17, and that if a previous notice had been given to his Government this regretful affair would not have occurred. Believing this, I said in reply that it was impossible for this Government to foretell coming events or to anticipate that the issue would arise in the manner presented on the occasion of the arrival of the three steamers. I told him I hoped this would prove a satisfactory explanation. Three days later—June 28th—I sent him the following:

"Referring to the subject of correspondence between His Imperial Japanese Majesty's Government and the Government of Hawaii, relating to the controversy that has arisen in regard to the rejected immigrants, permit me to add to my letter of the 25th inst., that, while still maintaining the integrity of the position taken by this Government, yet should the parties fail to arrive at a settlement of the question, I am authorized by this Government, in view of the friendly relations that have so long existed between the two countries and the mutual benefits of a continuance of such friendly intercourse, and the fact that the important questions involved have to do with the construction of the treaty and convention now existing between the two countries, as well as a discussion of the laws of this country, to suggest that the matters at issue be referred to a disinterested arbitrator or arbitrators for settlement, and in case such suggestion is accepted by His Imperial Japanese Majesty's Government, to say that the Hawaiian Government will abide by the result.'

"After this was sent, this Government received a letter from Count Okuma, through Minister Shimamura, dated June 12th, but as it has not yet been answered, I do not care to discuss it at this time."

Before giving out the information to the press, or at least before it had reached the afternoon papers, Minister Cooper sent word to Minister Shimamura of his intention. About 3 p. m. one of the attaches of the Japanese Legation called at the Foreign Office with a request from Minister Shimamura that the matter be withheld until the arrival of the next mail from Japan, by which he expected an important letter, in answer to the communication of June 28th, and the publication of the correspondence, at this time, he feared, would interfere with the amicable settlement of the affair. As the matter had already reached the afternoon papers, Mr. Cooper replied that he could not withhold it.