Mr. Hay to Mr. Wu.

No. 121.]

Sir: I have the honor to acknowledge the receipt of your note of the 1st ultimo, in which you express the view that the opinion of the Attorney-General, of July 15, last, respecting the exclusion from the United States of Chinese traders, is in direct opposition to the previous rulings of the executive officer of the United States who is charged by the laws with the enforcement of the treaties relating to the admission of Chinese to the United States.

As the matter relates to the duty of the Secretary of the Treasury under certain statutes, for the execution of which he is made the sole ministerial authority, and as the question whether and to what extent discretion in the execution of those statutes vests in the Secretary of the Treasury is one as to which the opinion of the Attorney-General may lawfully be taken, the President authorized me to submit your note of the 1st ultimo to the Attorney-General for an opinion upon the points raised by you.

I am now in receipt of the reply of Attorney-General Griggs, who, after exhaustive examination of the question presented reaches the following conclusions, which authoritatively mark and limit the power of the Secretary of the Treasury in determining the classes of Chinese entitled to admission into the United States under the existing treaties and laws.

[Page 198]

The opinion of the Attorney-General, of July 15, 1898, to which you specially refer, holds that Chinese “traders” are not entitled to admission into this country under the treaties and laws, and by consequence that no Chinese persons are entitled to admission unless they fall within the classes marked out by Article III of the treaty of 1894, viz, officials, teachers, students, merchants, or travelers for curiosity or pleasure.

This view proceeds upon the theory that the true intent, purpose, and result of all the laws is that not only those Chinese should be excluded from this country who are particularly and expressly forbidden entrance, namely, Chinese laborers, but that only those may be admitted who are expressly allowed, namely, the classes marked out by Article III of the treaty of 1894 and those who necessarily are adjunct to those classes, such as the valid wife and legitimate minor children, or children of tender years, of a permitted Chinaman. The opinion of November 3, 1898, considered this proper exception and allowed it, while applying strictly to that case, upon original entry of such an applicant here, the certificate requirements of section 6 of act of July 5, 1884.

The treaty of 1868, in the articles relative to the present subject, recognizes the right and advantage of voluntary migration and change of allegiance “for purposes of curiosity, of trade, or as permanent residents.” This seems to be the first indication of the ultimate phrase used. This view is expressed in order to reprobate the involuntary transportation of Chinese to this country under conditions amounting to slavery. This treaty also gave reciprocally the privileges, immunities, and exemptions as to travel or residence enjoyed by the citizens or subjects of the most favored nation. It seems likely that the significant phrase, viz, the one referring to classes or permitted people as originally indicated and as finally marked out, referred more aptly to American citizens who might desire to go to China than to Chinese subjects who might desire to come to this country; but the phrase, however it arose, has now become embedded in the law, and it is to be construed and the resulting permitted classes defined upon the language used.

Article II of the treaty of 1880 provided that Chinese subjects coming here as teachers, students, merchants, or from curiosity, with their body and household servants, and Chinese laborers then in the United States, might go and come of their free will, and should be accorded all the rights and exemptions accorded to citizens and subjects of the most-favored nation. Even under that language (without considering at present administrative construction) the Attorney-General submits that not all Chinese subjects, but those who are expressly delimited from other Chinese subjects, were giving the rights allowed. Subsequent to that treaty, legislation and decisions become more and more stringent upon the admission of Chinese. Not only was the entrance of laborers increasingly hedged about with safeguards and restricted, but they were finally denied admission on any terms. The act of 1882 provided inter alia, that “every Chinese person other than a laborer who may be entitled by said treaty and this act to come within the United States” should procure the identification certificate; the act of 1884 enlarged the certificate provisions, and among other things required the Chinese persons coming here, and so entitled, to obtain the permission of his own Government; the act of 1882 denied the previously recognized [Page 199] right of Chinese persons to be admitted to citizenship upon naturalization proceedings; the act of September 12, 1888, which it is true failed to take complete effect, and perhaps to take any effect, because the then pending treaty upon which it was based was not ratified, marks out in section 2 the same definite series of classes of Chinese persons; the act of November 3, 1893, defines and restricts those who may be merchants in contemplation of the law, and, in short, in many ways this intervening legislation expressly, or by necessary implication, vindicates the theory upon which the opinion of July 15, 1898, proceeds; and in the main all this legislation was sustained as constitutional by judgments in the Supreme Court of the United States.

Attention is directed, in connection with the privileges and exemptions supposed to be conferred by the earlier treaties and to the marking out of the permitted classes by the later treaties, to the want in fact of any real mutuality, which constitutes partly the basis for Mr. Justice Field’s dissenting opinion in the case of Chew Hoong v. the United States (112 U. S., 536, 560), and to which he refers on pages 567, 568.

Now, Article III of the treaty of 1894 again expressly states the privileged classes, and speaks of the right at present enjoyed by them. Surely this necessarily means that no such right is at present enjoyed by any other Chinese persons.

The article fully recognizes the certificate requirements of this Government, omits the reference in Article II of the treaty of 1880 to the body and household servants of individuals of the permitted classes, and omits the express grant of the rights and exemptions of citizens and subjects of the most-favored nations.

This being the conclusion as to the intention of Congress, and the real scope and purpose of the laws, the result is irresistible that the theory of the opinion in question is correct; namely, that only those expressly allowed may be admitted. The case of laborers required (and with good reason, as the administration of the Chinese-exclusion laws has shown) particular and exact denial, but those Chinese persons who are not laborers, and are not those of the permitted classes, are equally denied the right to enter. It is shown, in the opinion of the Attorney-General, that this does not conflict with the existing treaty, but is expressly recognized by it; and in any event, if it is the just meaning of the treaty and of the laws, it is to be sustained. Although treaty stipulations may seem to conflict, or may actually conflict, the Supreme Court decisions show clearly that while treaty obligations are to be regarded as a sacred compact, and are to be sustained if possible, they do not contain the ultimate decision of the question; otherwise a nation would not be sovereign and would not have the right, when conditions have changed and it becomes desirable and necessary, to exclude any class of aliens from its own territory. This the Supreme Court has recognized expressly in the Chinese cases which have come before it.

As to the decisions of the courts and departmental construction, it is admitted that there is authority in both for the contrary view. Chinese persons who were not laborers and yet were not of the permitted classes expressly or by necessary consequence of their calling or relation to persons who were of the permitted classes, have been admitted under decisions of the district courts or by Treasury rulings. It is true, in other words, that such rulings proceed upon the opposite theory of the law, that it is only necessary not to be a laborer; that the question is not whether an applicant is, for instance, a merchant, [Page 200] but merely whether he is not a laborer. The bearing, however, and stress of the question was not fully perceived in earlier years, and the reversal of the previous view, which, however, did not universally and in all instances prevail, was determined upon after careful consideration of all the facts and all the law of the case, and no valid reason can now be perceived for receding from the position taken of modifying the present deliberate view of the Executive.

The question may, under the present aspect of a collateral law taken by district courts and circuit courts of appeal, be raised judicially, and ultimately be brought to the Supreme Court; that is to say, the lower courts hold that although the act of August 18, 1894, makes the decision of the appropriate customs or immigration officer final upon the application of an alien for admission, if the decision is adverse to the alien’s right and is unreversed by the Secretary of the Treasury on appeal, nevertheless that if the alien disobeys this decision and eludes the customs officers and covertly comes into this country, then a new jurisdiction attacks under the law, namely, the jurisdiction before a United States judge or a United States commissioner, who may, upon such an alien’s being arrested for being unlawfully within this country and taken before him, ignore the collector’s decision, examine the whole subject de novo, and determine it upon the merits. The United States is opposing this view, but at present it is the prevailing view of the lower courts. Therefore, if a Chinese trader, for example, who was denied admission at the frontier by a collector, were afterward found in this country and taken before a district court for being unlawfully in the United States, the very question involved in your complaint would be raised and could be settled by orderly course of procedure up to the Supreme Court.

You make no specific complaint of the rule announced in the opinion of November 3, 1898, by which a certificate is required, upon first entry at least, of the wife and children of Chinese of the permitted classes. The question, however, has already been raised in the courts, and is now pending upon final appeal in the Supreme Court of the United States, and will doubtless be heard and decided at the present term.

In the latter case the preponderance of opinion in the lower courts and of departmental construction sustains the view of the Attorney-General.

Accept, etc.,

John Hay.