Mr. Wu to Mr. Hay.
Washington, November 7, 1898.
Sir: I had the honor to receive your note of the 5th ultimo, with which you inclose an opinion of the Acting Attorney General expressing the view that there is no authority to be derived from the existing laws of the United States granting to consular officers of China in a foreign country the right to issue the certificates prescribed by section 6 of the act of Congress of July 5, 1884.
I regret that you should have decided, as seems to be the case from your note, to give to that opinion the force of a law without first affording me an opportunity to lay before you the views of my Government upon a matter of so much importance to a large class of Chinese subjects. I trust, however, it may not yet be too late to submit [Page 190] those views, and I beg to ask for them the unprejudiced consideration of yourself and the honorable the Attorney-General.
The Acting Attorney-General appears to have based his opinion, not upon any law passed by the law making power of the United States, but upon Article III of the treaty between China and the United States signed March 17, 1894. It is admitted that previous to the conclusion of that treaty, and for some time after the date of that treaty, it was held that under the laws now, as then, in force on this subject, the certificate of the Chinese consul in the foreign country was a compliance with section 6 of the act of 1884. This is forcibly stated by your predecessor, the Hon. Richard Olney, when acting as Attorney-General, and I am not aware that he changed his opinion after he became Secretary of State.
It is now contended that section 6 of the law was modified by the ratification of the treaty because of this provision in its Article III: “To entitle such Chinese subjects as are above described to admission into the United States they may produce a certificate from their Government or the government where they last resided, viséed by the diplomatic or consular representative of the United States in the country or port whence they depart.” Section 6 of the law provided that in all cases the Chinese Government (through its consul duly empowered) should issue the certificate to Chinese subjects residing in foreign countries; and that only in cases where Chinese had become naturalized subjects of the foreign country was the government of that country to issue the certificate. Such was the legislative requirements enacted under the treaty of 1880, but it was found in practice that this requirement worked hardships, for there were considerable numbers of Chinese subjects residing in countries where there were no Chinese consuls. Hence, when the unratified treaty of 1888 was framed, it was agreed that this inconvenience should be overcome by authorizing, in the alternative, the issuance of such certificates by the Chinese consul as was then permitted by existing law or by the government of the foreign country where they (the Chinese) resided, and for that purpose the clause above quoted was inserted in Article III of that treaty, which was textually readopted and inserted in the treaty of 1884.
That such was the intention of the American as well as of the Chinese negotiators of the treaties is made manifest by the action of the Secretaries, Bayard and Gresham. After the ratification by the Senate of the United States of the treaty in 1888, a bill was introduced in Congress, doubtless at the instance of Secretary Bayard, and passed by that body, for the purpose of putting the treaty in operation, in which section 6 of the law of 1884 was reenacted almost literally, with the clause relating to the admission of Chinese other than laborers, who were required to “first obtain the permission of the Chinese Government or other government of which they may at the time be a citizen or subject.” Certainly if Secretary Bayard understood Article III of the treaty to require all Chinese residing in foreign lands to obtain a certificate from the government where they resided, and not from the Chinese Government through its consul, he would have seen that such requirement was inserted in the law. So also it will be noted that after the treaty of 1894 was ratified a bill to carry it into operation was introduced in the Senate (No. 2309, 53d Cong. 2d sess.), which provided that section 6 of the act of July 5, 1884, was to be reenacted. The bill, I am informed, did not become a law [Page 191] because it was held that the treaty did not repeal or affect the existing laws, which was an additional evidence that Article III did not modify section 6.
Moreover, Article III does not bear the narrow sense which it is attempted to put to it. It does not mean that, in the case of Chinese subjects resident in a foreign country, a certificate issued from that country only and no other can be sufficient; for if that had been the intention of the negotiators of the treaty, they would have made it clear by putting that such Chinese subjects must produce a certificate from their Government or, if residing in a foreign country, the government where they last resided, etc. It is plain, therefore, from the natural construction of the sentence that the option is left to such Chinese subjects of obtaining a certificate either from their Government or the government where they last resided. It is one of the rules of interpretation that a right once conferred on a person can not be taken away by implication without express and unequivocal provisions to that effect, much less by a narrow and one-sided construction, as it is attempted in the case under consideration; and, with all due deference to the Acting Attorney-General, I respectfully submit that his ruling should not be followed.
The slightest consideration must make it clear that the Chinese Government could not willingly consent to surrender the issuance of certificates by its consuls to its subjects in foreign lands, for they, better than the local authorities, would know the avocations, extent of business, and other details necessary to be set forth in the certificate; and they owe a responsibility to their Government which the authorities of the foreign government would not for the correctness of their certificates. Besides the opinion of the Acting Attorney-General would impose an unusual duty on the foreign government without its consent, and one with which neither the Government of China nor the United States can compel compliance. It is reasonable to conclude that the only cases in which it was contemplated by the treaty the foreign government should be expected to issue the certificates are where there are no Chinese consuls or where the person in whose behalf the certificate is issued is a subject of the country.
Having set forth the reasons why the opinion of the Acting Attorney-General should not be held by your Government to control and set aside the true intent of the treaty and the existing laws of the United States, I desire to embrace this occasion to convey to you the views of my Government upon another recent opinion of the Attorney-General, which, although it has not been communicated to me has been officially published (see Treasury Decisions, vol. 2, No. 3, July 21, 1898, pp. 99 to 101), and is being enforced; and which works a still greater injustice to the treaty and to Chinese subjects than the one just discussed. This decision is to the effect that only the classes of persons expressly named in the first clause of Article III of the treaty of 1894 are entitled to admission into the United States, and the Secretary of the Treasury has accordingly issued instructions naming a long list of professions and avocations for exclusion. I respectfully submit that this decision is directly in opposition to the treaties, to the laws of the United States, and to the whole history of events which gave rise to them.
The preamble to the treaty of 1880 shows that it was entered into at the request of the United States and the reason therefor is stated [Page 192] to be “because of the constantly increasing immigration of Chinese laborers.” In the first article authority is given to the Government of the United States whenever in its opinion “the coming of Chinese laborers * * * affects or threatens to affect the interests of that country” to “regulate, limit or suspend such coming or residence.” But it provides that “the limitation * * * shall apply only to Chinese who may go to the United States as laborers, other classes not being included in the limitation.” Then follows in the next article the enumeration, which substantially appears in the treaty of 1894, as to “officials, teachers, students, merchants, or travelers for curiosity or pleasure.” The treaty of 1894 in its preamble recites the object of the treaty of 1880, and gives as the reason for its amendment “the antagonism and much deprecated and serious disorders to which the presence of Chinese laborers has given rise.” Thereupon it amends Article I of the treaty of 1880 under which the immigration of Chinese laborers could be suspended, but not absolutely prohibited, by authorizing their absolute prohibition for ten years; and it amends Article II as to Chinese laborers, under which they were “allowed to go and come of their own free will and accord,” by restricting their return to the United States by the terms set forth in Article II of the new treaty. A provision, not found in the treaty of 1880, is added as to registration of “Chinese laborers;” but in no other respects is the treaty of 1880 modified or affected by the treaty of 1894, except as already stated respecting the certificate to be given to Chinese subjects residing in foreign lands. It repeats in Article III the recital of “officials, teachers, students, merchants, or travelers for curiosity or pleasure,” but expressly states that their right of coming to the United States is under the status “at present enjoyed,” that is, under the treaty of 1880.
Not only does the treaty and all the correspondence leading up to it show that the intention was to exclude Chinese laborers only, but the various laws of the Congress of the United States are in absolute confirmation of this intent. Section 6 of the acts of 1882 and 1884 refers to those who must produce the required certificate as “every Chinese person other than a laborer;” the penalty in section 2 of these acts imposed upon vessels only applies to the bringing of “Chinese laborers;” under the act of May 5, 1892, registration is only made obligatory as to “Chinese laborers;” and the act of October 1, 1888, known as the Scott Act, the most drastic legislation ever passed by Congress, was expressly limited to “Chinese laborers.” Under these acts it never was held by the United States authorities that admission of the exempt classes was confined to those only who are recited in Article II of the treaty of 1889; and the present exclusion can not justly be based upon the fact of the recital in Article III of the treaty of 1894, for the same recital appears in the treaty of 1880. The force and effect of the legislation of Congress is well stated by the Supreme Court of the United States in its opinion in the case cited by the Attorney-General in his opinion, Wan Shing v. United States (140 U. S., 424–428), as follows:
“The result of the legislation respecting the Chinese would seem to be this, that no laborers of that race shall hereafter be permitted to enter the United States, or even to return after having departed from the country, though they may have previously resided therein [Page 193] and have left with a view of returning; and that all other persons of that race, except those connected with the diplomatic service, must produce a certificate from the authorities of the Chinese Government, or of such other foreign Governments as they may at the time be subjects of, showing that they are not laborers, and have the permission of that Government to enter the United States, which certificate is to be viséed by a representative of the Government of the United States.”
It thus appears by the declaration of this high tribunal that the only test to be applied to a Chinese seeking admission into the United States is whether or not he is a laborer. If the negative shall be established in the manner prescribed by the laws, to wit, by the production of the proper certificate, the person must be admitted. I feel it therefore my duty to protest in the most energetic but respectful manner against adding to the existing treaties any conditions not contemplated nor contained therein. It is most unreasonable to suppose that such was the intent of the negotiators. Did they contemplate the admission of students and the exclusion of scholars, when there are such in China of the most eminent attainments, philosophers worthy to rank with the distinguished savants of America or Europe? Did they propose to admit merchants, however small their business, and reject bankers, of whom there are many in China possessed of millions; and turn away brokers or commercial agents, of whom there are not a few in China managing the business of the largest commercial houses and banking companies of Europeans? Was it probable that they would provide for the admission and residence in the United States of tens of thousands of Chinese laborers and prohibit the entrance of physicians to care for them? Would they stipulate for the coming without limit of mere travelers, however lowly, for curiosity, and refuse the stay of noblemen or mandarins of high rank and station? To state these queries is to refute them. I feel sure the Attorney-General could not have considered the effect of his decision, and that he will, upon reflection, correct it.
But I am constrained to appeal to you, and through you to His Excellency the President, to place a check upon these limitations which are being added to solemn treaties by opinions and mere Treasury orders. I am sure you will agree with me that the Government of China has in the past thirty years shown itself most complaisant to the wishes and convenience of the United States. The treaty of 1868, negotiated by Secretary Seward, was supposed to mark a new era in the relations of the two great nations. But with the lapse of twelve years new conditions arose, and when a special commission was sent to Pekin by the American Government, it was received with the highest honors, and the desires of the President were embodied in the treaty of 1880. Again, the experience of a few years made further restrictions desirable, and the treaty of 1894 was agreed to, but it was hardly put into operation before its provisions were attacked by the indirect means of domestic construction and interpretation, until it has become necessary to make this solemn protest. It is an undeniable fact that both the treaties of 1880 and 1894 had for their sole object the exclusion of Chinese laborers. I beg, therefore, to suggest that the present treaty be allowed to run its appointed period of ten years, in the spirit in which it was negotiated, and at the end of that period if your Government has further amendments or changes to propose, [Page 194] you have the past conduct of the Chinese Government as surety that it will consider the proposals with fairness and a full regard to the local conditions and necessities of the United States.
Accept, etc.,