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As was explained in that communication, however, it is the only plan which it is in the power of the Imperial Government to put into operation. The efficiency of such a plan must of course depend on the means of enforcing compliance with its provisions. In this case, although the Imperial Government are unable directly to compel the Japanese subjects to register as desired, they can indirectly make registration highly desirable if not indispensable in the majority of instances, refusing to grant certain consular certificates to nonregistered persons. These include cer tificates relating to conscription and various matters affecting personal rights and status the possession of which, in view of the processes of Japanese law, is of great importance to most Japanese resident abroad.

Count Hayashi is gratified to find in the ambassador's statement with reference to the course to be adopted in the event of future renewal of Japanese emigration to Hawaii substantial accord with the opinion entertained by the Imperial Government, which is that if at any time hereafter it should appear desirable to depart from the present policy of prohibition, that step should only be taken after ascertaining through an American official source the labor conditions prevailing in the islands and the need thereof.

In view of weak condition of Cabinet and threat to censure Japanese Minister for Foreign Affairs for yielding in emigration matters, as much has been agreed to as could be expected, and it is believed that there is an honest intention to make promises effective. If the proposed undertakings are satisfactory, I hope for early permission to make the fact known to Japanese Minister for Foreign Affairs.

O'BRIEN.

Mr. O'Brien to Mr. Root.

Despatch No. 197.]

AMERICAN EMBASSY,
Tokyo, February 19, 1908.
(Received March 7, 1908.)

SIR: I have the honor to inclose herewith a copy of a note received from Count Hayashi to-day, in reply to my note of January 25, together with a copy of the more lengthy memorandum which was attached to the note in question.

As the pouch closes to-day, I am obliged to confine myself to merely transmitting a copy of this note without comment. The Department will, however, undoubtedly receive before the arrival of this despatch a telegraphic summary of its contents, together with such information and explanation as I may be able to obtain from the Foreign Office in regard to certain points which do not appear to be especially clear or acceptable. I have the honor, etc.,

T. J. O'BRIEN.

Inclosure: Copy of note from Count Hayashi and of memorandum attached to same.

[Translation.]

Confidential No. 3.]

DEPARTMENT FOR FOREIGN AFFAIRS,

Tokyo, February 18, 1908.

MONSIEUR L'AMBASSADEUR: I have the honor to acknowledge the receipt of your excellency's note of the 25th ultimo, with its inclosures, in reply to mine of the 31st of December with reference to the regulation of Japanese emigration to the United States.

S 3048- 4

It is especially gratifying to me to learn that your excellency's Government find in the views expressed and in the proposals made in my communications evidences of a spirit of mutual helpfulness and of frank and cordial cooperation, because it shows that I have made clear the belief entertained by my Government that the only satisfactory method of adjusting the matters under consideration is by adherence to a policy of mutual accord and accommodation. It is an additional reason for sincere gratification to observe in the note under reply such signal proof of the concurrence of your excellency's Government in this opinion and of their desire to reach a solution of the problem with which we are dealing in accordance with the principle of action which commends itself so strongly to the Imperial Government. I have the honor to transmit herewith a memorandum embodying observations suggested by your excellency's note and its inclosures, and sincerely trust that your excellency will find therein fresh evidence of the desire of the Imperial Government to respond to the wishes of the Government of the United States so far as is compatible with due regard for the interests in their charge.

I avail myself, etc.,

His Excellencу THOMAS J. O'BRIEN,

COUNT HAYASHI, Minister for Foreign Affairs.

Ambassador Extraordinary and Plenipotentiary

of the United States of America.

Memorandum.

In the memorandum accompanying Count Hayashi's note of December 31, he outlined the additional administrative measures for the regulation and control of emigration which the Imperial Government are prepared to enforce. The necessary steps are being taken to put those measures into effective operation, and Count Hayashi is confident that they will be found to cover the ground of the first three of the suggestions made in the memorandum transmitted with the ambassador's note of November 26. In the meantime, as his excellency is aware, the Imperial Government have anticipated the enforcement of these additional measures by strictly limiting emigration to the American mainland and by suspending for the time being fresh emigration to the Hawaiian Islands.

So far as concerns the fourth and fifth suggestions embodied in the ambassador's memorandum above cited, the Imperial Government still find it impracticable to agree to the adoption in their entirety of the measures therein proposed.

There seems to be some misapprehension on the part of the American Government regarding the Japanese passport system, arising apparently from the belief that the passports themselves contain conditions the violation of which would justify the infliction of a penalty. This is not, however, the case. Passports are issued in all cases under fixed limitations—that is to say, only to persons possessing certain special qualifications, which must be proved to the satisfaction of the responsible authorities, who are instructed to exercise the most careful scrutiny, and who, by aid of the new administrative measures, will have additional and, it is hoped, more effective means of determining the actual status of applicants. But while by these means it may be confidently expected that the number of evasions will be reduced to a minimum, the passports themselves contain no conditions for the violation of which the Imperial Government can inflict a penalty after the offender has passed beyond their jurisdiction.

But even if it were possible to exact such a penalty there are cases where its imposition might amount to a positive injustice. It may happen, for example, that the bearer of a student's or merchant's passport, obtained in good faith, may be reduced through some unanticipated misfortune to the necessity of manual labor.

Moreover, there is another class of cases, also, in connection with which a declaration of that kind might create embarrassment. This includes a large number of Japanese laborers in the United States with passports for the Hawaiian Islands,

British Columbia, and Mexico, who entered prior to the promulgation of the executive order of March 14, 1907. It is quite apparent that the suggestion in the ambassador's memorandum was not intended to be retroactive and consequently has no reference to cases of this kind. But from circumstances which have occurred since the issuance of the order and from the greatly exaggerated statements which continue to appear in the public press concerning the number of surreptitious entries alleged to have taken place since then, it is evident that serious confusion has arisen between those laborers which violated no law when they entered the United States and the much smaller number of persons possessing similar passports who have evaded the prohibitions of the executive order and administrative regulations. While the Imperial Government sincerely deprecate the complications which have resulted, they fear that a declaration on their part invalidating a certain class of passports, even if they had the power to make it, so far from remedying the situation might even lead to fresh complications. With the enforcement of the precautionary measures now in contemplation or in actual operation it may reasonably be expected that similar causes of complaint will be of very large occurrence. As an additional precaution it is the intention of the administrative authorities, in every case of evasion of the limitations under which passports are issued that comes to their knowledge, to refuse further applications for passports from the persons guilty of the fraud, and to extend the prohibition to applications for passports for the parents, wives, and families of such persons. This is the only practicable sanction. which can be imposed, but experience will doubtless prove its value, in cooperation with other preventive measures, as a deterrent to fraud.

For these reasons the Imperial Government believe they have good ground for hesitating to declare in advance that all acts in contravention of the representations upon which passports were secured shall per se be tantamount to a forfeiture of any right guaranteed by treaty or otherwise, the passport itself, as has hitherto been explained, being merely the expression of the request of the Japanese Government that the bearer, a Japanese subject, shall be accorded the enjoyment of such rights. Count Hayashi begs to thank his excellency for the copy of the order establishing the registration of American citizens abroad and notes with pleasure the considerate attitude of the American Government with reference to the suggestion. The Imperial Government have studied the subject with great interest, and have now the intention of establishing a system for the registration of Japanese resident in the United States as nearly similar to that described in the ambassador's note as circumstances will permit. Certain practical difficulties to which attention has already been drawn will have to be overcome, such, for example, as are incident to the large areas included within the jurisdiction of the imperial consular establishments in the United States, the widely scattered places of residence of Japanese residents, the nomadic habits which the occupations of laborers in particular frequently entail, and the absence of anything in the nature of a legal sanction whereby registration may be rendered absolutely obligatory. This latter obstacle may in a measure be overcome by refusing certain privileges to nonregistered persons which it is optional to accord; but even under the most favorable circumstances the task of establishing and keeping such a record will be a difficult one. It was not this circumstance alone, however, which at first inclined the Imperial Government to regard the suggestion as unacceptable, but the apprehension that the adoption of such a system might be regarded as equivalent to an admission that Japanese subjects not registered, although entitled to be, might be held to have forfeited their right of residence in the United States, or might at least be subjected to trouble and expense difficult to bear; in other words, the Imperial Government, as a matter of principle, were and still are averse to adding to the obligations already incumbent on such Japanese subjects another obligation which might under easily supposable circumstances work unmerited hardship. At the same time they fully realize the value of frank and harmonic cooperation by the officials of the respective Governments in this as well as in all other matters connected with emigration, not only as one of the most effective means of preventing fraud, but also as the strongest safeguard of the rights of those mistakenly accused of it. Recognizing in the

explanations of his excellency the importance which his Government attach to procedure thus inspired, and highly appreciating also the cordial conciliatory spirit which his comments display, the Imperial Government have modified their opinion as above indicated and will establish a system of registration as soon as practicable. It should be added, however, that while no effort will be spared to make the registration as complete as possible, the Imperial Government will not consider that the absence of registration constitutes a reason for the forfeiture of residential rights. With regard to the sixth suggestion, that the Imperial Government shall cooperate with the Government of the United States to compel steamship companies to carry back ineligible emigrants, Count Hayashi regrets to say that there is no provision in Japanese law similar to that in force in the United States, granting this power to the administrative authorities, and that at the present juncture it would be useless to attempt to secure the passage of such a measure by the Diet. It occurs to him, however, that by reason of the measures of restriction upon emigration to territories adjacent to the United States the cause for anxiety on this score will disappear.

Since the receipt of the ambassador's note of the 25th ultimo, Count Hayashi has caused renewed and thorough examination to be made of the statistics of emigration during the past two years. This investigation has not only included the official statistics, but also the passenger lists of steamship companies. The result confirms in all essential details the statement made in his memorandum of December 31. He is quite at a loss to account for the discrepancies thus disclosed, although possibly a partial explanation may be found in the fact that the American annual statements are for the year ending September 30, while the Japanese statistics are for the calendar year; and also as regards the respective monthly statements, in the difference incident to enumeration at the time of the arrival in the one case and of departure in the other. However that may be, Count Hayashi begs to repeat that the Imperial Government have no wish to lay undue stress upon any mistakes of this kind which may have occurred, particularly since at the present time the subject possesses more interest as a matter of record than as one of practical moment. His excellency the ambassador did Count Hayashi the favor to transmit with his note of the 25th ultimo a copy of the executive order of April 8, 1907, defining the term "laborer, skilled and unskilled," and also certain supplementary measures, the administration of which, in conjunction with those already proposed, it is thought "will make still more effective the policy of the Japanese Government in respect to the subject under discussion."

Taking these measures in the order in which they are stated in the inclosure with his excellency's note, Count Hayashi begs to submit the following observations:

First. The passports of foreign countries, some fifteen in number, have been examined and compared, and as a result it has been resolved to introduce certain modifications into the passport form now employed, including various matters of detail embodied in most foreign passports. The ambassador no doubt understands from the explanations already made to him that the forgery of the passports at present in use is thought to be virtually a negligible danger. That, however, will not be regarded as a reason for omitting whatever additional safeguards the above changes may afford against the perpetration of fraud of all descriptions.

Second. Passports to laborers who have already been in America, and to the parents, wives, and children of laborers resident there, are issued upon the production, in the former case, of the certificate of a consular officer in the United States and, in the latter, upon the production of such certificate and of a duly certified copy of the official registry of the members of the family in Japan. No passport can be issued by any local official in Japan except upon the presentation of such certificate or certificates, duly authenticated, and both consular officers and local officials are instructed to omit no precaution against possible fraud in the exercise of the duties intrusted to them.

Third. With reference to the term "settled agriculturist" the understanding expressed in the ambassador's memorandum virtually agrees with that of the Imperial Government as explained in the note to his excellency's predecessor dated May

16, 1907 [evident error for May 26, 1907]. The settled agriculturist must in every case be a person who has invested capital in the enterprise, and whose share of its proceeds, if it is carried on in partnership, will of course be in proportion to the amount of his investment. Nor is any such undertaking sanctioned unless title to the land, whether by leasehold or in fee simple, has actually been acquired. The greatest care is exercised with reference to this point, and not only are detailed reports required from consular officers cognizant with the circumstances, but also the certificates of notaries public attesting the bona fides of the transaction.

cials are not authorized to issue passports in this class of cases, but all applications therefor, as well as all other applications relating to the matter, must pass through the Foreign Office and receive its direct sanction.

Fourth. The definition of "laborer, skilled and unskilled," given in the executive order of April 8, 1907 (a copy of which was transmitted with the ambassador's note), contains no particular which the Imperial Government can regard as inapplicable in determining the status of persons of that class. Count Hayashi notes, however, that it is stated in the order that the definition is subject to change, and consequently he can not go so far as to say that the meaning attached by the Imperial Government to the term will always conform to the definition as thus amended.

Fifth. In the informal memorandum which Count Hayashi had the honor to hand his excellency on the 30th of December, the system hitherto followed with reference to Japanese emigration to the Hawaiian Islands was explained, and it was added that from considerations based upon the fundamental difference between the Hawaiian Islands and the American mainland, economic, geographic, and historical, "the Imperial Government earnestly desires that the territory of Hawaii be set outside the scope of the present discussion." It was added that this desire by no means implied an intention on the part of the Imperial Government to insist upon the permanent continuation of the present system. It signified merely, as the context indicated, the belief that the exceptional labor requirements of the Hawaiian Islands and the equally exceptional circumstances under which Japanese emigration thither originated and reached its present proportions differentiated the question from that of ordinary emigration and rendered its separate consideration both logically and mutually desirable. As was also explained, Japanese emigration to Hawaii has hitherto been almost exclusively in response to the requirements of the industry to which the Territory owes its present high standard of wealth and prosperity-in other words, to the operation of the law of demand and supply. Recognizing the value of the mutual benefits which have followed in such full measure, the Imperial Government have no other wish than that future emigration to Hawaii shall proceed upon the same lines, but in no case in excess of natural and legitimate demands, since it is self-evident that excessive emigration would be as harmful to the interests of the emigrants themselves as it could possibly be to any other.

No. 204.]

Mr. O'Brien to Mr. Root.

AMERICAN EMBASSY,

Tokyo, February 25, 1908.
(Received March 18, 1908.)

SIR: I have the honor to herewith confirm my telegraphic message to you of the 19th [20th?] instant, reading as follows:

SECRETARY OF STATE, Washington:

FEBRUARY 20-2 P. M.

Lynx. I have received lengthy note from the Foreign Office certain points of which are not fully responsive to my last note. I will try to obtain something more definite and will then cable entire result.

O'BRIEN.

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