Mr. Wharton to Mr. Tsui.
Washington, December 10, 1892.
Sir: I have the honor to acknowledge the reception of your two notes of the respective dates of November 7 and November 11, 1892, concerning the recent legislation of the Congress of the United States “in respect to Chinese subjects” in this country.
In the former of these two notes you refer to certain unanswered notes of your predecessor and of yourself as containing a full discussion of the provisions of the act of Congress approved October 1, 1888. That statute was brought about by the regrettable failure to complete the treaty signed at Washington March 12, 1888. It does not seem necessary at this late date to discuss the circumstances under which the treaty of 1888 failed, or to conjecture whether, had it been duly perfected, it would have served to avert the difficulties or meet the issues which have since arisen. That the failure of that treaty, through the withholdment of the Imperial ratification, exerted a prejudicial influence upon American sentiment thereafter, is hardly open to doubt.
Neither does it seem necessary to the present object to enter into a full historical and analytical review of the variant conditions which have existed in the United States and China since the first treaties were signed in regard to the treatment of aliens. It would not be difficult to show that from the outset the position of the foreigner in China has been one of isolation and exclusion, his rights being limited under treaties to certain specified objects within the narrow limits of the treaty ports, and extended only at the will of the Chinese Government to residence and travel in the interior. The foreign states, by their compacts with China have impliedly recognized the inherent right of that Empire to regulate the domicile and business of aliens within its borders, by soliciting and obtaining from China the limited privileges expressed by the formal treaties and the expanded privileges growing [Page 159] out of them. Nor would it be difficult to argue with convincing force that the application of this right by China is governed in its manifestations by the inherent immiscibility of the Mongolian and Caucasian races. As are all Europeans to the native Chinese communities, so are the Chinese to the communities of European blood—a people apart, not willing to be engrafted upon the national life, and dwelling under the special license of an artificially created necessity.
You and your predecessors have pointed to the exclusive and repressive treatment of Chinese in the United States and to the acts of lawlessness from which they have suffered. It would be easy to offset this phase of the argument by a recital of the multiplied instances wherein citizens of the United States peaceably dwelling or traveling in China have been the victims of mob violence and of vexatious aggression on the part of the local authorities; but I fail to see the good to tlow from such a line of discussion, since the Governments of China and the United States have been alike sincere in their expression of abhorrence for such acts, and practical in their disposition to proffer suitable amends. To pile up past causes of grievance on either side would but embitter the temperate examination of present problems which Iam sure is the wish of your Government, no less than of my own, to give to the subject.
Reserving, therefore, all consideration of these aspects of the general question, I confine this communication to the precise points you make touching the recent legislation of Congress in renewing the acts passed for the execution of the treaty of 1880. Those acts being limited in their effects to a fixed term of years, which in the judgment of Congress came to an end in May last, it became necessary to reënact them for a further term, with such safeguards as experience should have shown to be needful. While more precisely providing for the exclusion of new-coming Chinese laborers from our shores, in pursuance of a policy in regard to which the negotiations of immediately preceding years had shown the two Governments to be in substantial accord, the new legislation aimed to meet the case of the Chinese subjects actually residing and laboring in the United States by providing the means whereby their right to remain and enjoy the privileges of residence stipulated in the existing treaties should be confirmed to them by an orderly scheme of individual identification and certification. The statute as completely aims to protect the persons and rights of all Chinese persons entitled to residential privileges as it does to prevent their fraudulent enjoyment by those not entitled thereto.
You are pleased to state that the proceedings which led to this legislation itself were not required by any existing emergency that had arisen between the two nations, but in this you overlook the circumstance that the theretofore existing temporary legislation under the old treaties, was about to terminate by its own time limitation, as also the fact that the abrupt failure of the negotiations for a fuller international accord on the general subject had not only devolved upon the Congress of the United States the necessity for dealing with the matter by the municipal resorts pertaining to sovereignty, but had moreover aroused an unfortunate belief that the attitude of China was obstructive and the claims of China unreasonable. That this belief is without solid foundation I am happy to assume; that it did exist and under the circumstances with good show of reason, must be frankly admitted.
Much of the argument in the preceding notes of your legation, to which you refer and which you incorporate in your present notes, rests upon the assumed claim that the status of Chinese subjects with respect [Page 160] to the body politic of the United States is on the same footing as that of all other aliens of whatever nationality. Neither in the light of international reciprocity nor in that of municipal sovereignty can these assumptions hold good. The restrictions upon foreigners in China are special and onerous, as to vocation, residence, and travel, and are based on the natural barriers which seem to forbid the assimilation of the foreign element with the native Chinese race. This condition of immiscibility is likewise as forcibly present in the case of Chinese in the United States as it is generally absent in regard to aliens of the same race and blood as our own. It is the inherent prerogative of sovereignty to take cognizance of such incompatibilities and to provide special conditions for the toleration of the unassimilable element in the national community. China’s treatment of foreigners can only be justified on such grounds. Moreover, this sovereign right is freely exercised by the United States in the adoption of restrictive or discriminatory legislation in regard to any classes of alien immigration whenever the exigencies of the public interests demand and to whatever extent may be requisite.
As I have said, the recent reënactment of the former statutes regarding Chinese persons was accompanied by provisions looking to the formal assurance to the individual Chinaman, lawfully resident in the United States, of liberty of residence and pursuits equally with the citizen of this country, and this, too, without hindrance of the right to establish himself where and how be will in any part of the land. The provisions of this legislation are practically designed to secure to such Chinamen privileges and a measure of individual freedom far beyond those accorded to American citizens in China, both in degree and in the number of those who possess them. While differing in detail they are believed to be, in the main, no less easy of fulfillment than the conditions imposed in nearly every country of the European continent for the civil registry of the inhabitants thereof. You allege the hardship and the unconstitutionality of this legislation. I am unprepared to admit the charge of hardship until the practical application of its provisions shall have demonstrated it by positive proof.
It is regrettable that the attitude of the Chinese themselves appears to be as much one of defiance of the provisions of the statute as that of your Government is of protest against it in advance of a fair trial of its workings.
As for the charge of unconstitutionality brought against the penal provisions of the act in question, that is a matter to be determined, as you are doubtless aware, only by the judicial branch of the Government, which is as freely open to the Chinese subject as to the citizen of the United States. It is the duty of the Executive to enforce the law, and no executive power exists to evade or repeal it.
The province of the executive branch in this discussion is to bring about a better understanding of the matter and to reach a good accord as to the principles involved. Such an accord should not be far to seek. As you say in your note of the 7th November: “It is conceded that the Imperial Government has not encouraged the emigration of its people from China to the United States, but, on the contrary, in the negotiations between the countries on the subject, it has in the most friendly manner yielded to the suspension of emigration.” It is perhaps unfortunate that the tangible expression of this friendly disposition went no further than the negotiations which preceded the collapse of the treaty signed in 1888. I see no reason why a better understanding may not be brought about whereby the position of China [Page 161] shall he rather one of amicable concurrence toward a rational and practical end than one of obstruction to the working of measures the adoption of which has been in a large degree forced upon the legislative power of the United States by the conduct of the Chinese people in this country and by the attitude of the Imperial Government in their regard.
Accept, etc.,
Acting Secretary.