Mr. Wu to Mr. Hay.

No. 247.]

Sir: In view of the recent discussion in Congress and its action in continuing in force the laws for the exclusion of Chinese laborers from the United States, it becomes my duty to bring to your attention the present situation of the subject.

It seems to have been the purpose of the framers of the bills for the more rigid enforcement of the exclusion of the Chinese from the United States to adopt the regulations of the Immigration Bureau which limited the terms of the immigration treaties of 1880 and 1894; and, by inserting them in the provisions of the bills, to thus secure; for these regulations the force of law. I refer especially, first, to the regulation that under the treaty no Chinese persons could be admitted except the five-classes enumerated in Article III of the treaty of 1894; and, second, to the assumption of the Immigration Bureau that it was in the power of the Secretary of the Treasury to add to the conditions set forth in the treaty other requirements as to merchants, teachers, students, etc., to enable them to secure admittance into the United States, and also other requirements for the return of Chinese laborers lawfully in the United States. All the rulings of the Treasury and immigration officials on those points were inserted in the bill which passed the House of Representatives, and likewise appeared in the bill which was reported from the Committee on Immigration to the Senate.

It will be seen by the lengthy debate which took place in the Senate that all these regulations of the Immigration Bureau were attacked by Senators who were learned lawyers and who characterized them as violations of the treaty. The sentiment of that distinguished body was so strongly against these provisions in the bill that as to some of them the advocates of the measures voluntarily abandoned their support of them and asked that they be stricken out of it. Even with the amendments, the bill was so objectionable to the Senate that it was defeated by a decided majority. And when the bill which finally became a law was passed it merely continued the legislation in force which had been enacted before the treaty of 1894, without any of the objectionable regulations of the Immigration Bureau, and with an express condition that these laws were “continued, so far as the same are not inconsistent with treaty obligations.” Hence I understand the action of Congress to have been in decided disapproval of the conduct and practice of that bureau under its late management, and against which it has been so often my unwelcome duty to remonstrate.

Within a period of two years it will be incumbent upon our respective Governments to determine whether the treaty of March 17, 1894, shall be continued for another period of ten years, and that decision will be greatly controlled by the manner in which the treaty and laws are enforced for the remainder of the term. As you know, my Government has repeatedly manifested its willingness to cooperate with that of the United States in securing the exclusion of Chinese laborers from the United States in accordance with the provisions of the treaty, and I desire now to give renewed assurance of its good disposition in that regard for the future. And that this cooperation may be most efficient have to suggest that the action of Congress in disapproving [Page 216] of the regulations and practices of the Immigration Bureau, the reorganization which the President has thought necessary to make in that Bureau, and the near approach of the term limit of the treaty, all point to the desirability of making such a revision of the regulations as will guarantee an observance and enforcement of the spirit and the letter of the treaty.

The points upon which my Government would expect to secure a modification of the recent practice of the bureau have already been indicated in general terms; but in order that its views and wishes may be more fully understood, I proceed to make a more detailed specification. First, it would expect the Immigration Bureau to admit into the United States, with the certificate required by Article III of the treaty of 1894, all Chinese who are not properly classed as laborers. When the American commissioners went to Peking, in 1880, to solicit a modification of the treaty of 1868, they only asked the consent of China to exclude Chinese laborers, and the report of the negotiations as made by the American commissioners makes it clear that they had no other object than the exclusion of the Chinese laborers alone. (See Foreign Relations of the United States, 1881, pp. 171190.) But the language of the treaty of 1880 is very explicit on this point. In Article I it says:

The limitation or suspension shall be reasonable, and shall apply only to Chinese who may go to the United States as laborers, other classes not being included in the limitation.

During the negotiation of the treaty of 1894 not a word was said about the restriction of any other class than laborers, and the language of the preamble shows that the only modifications to existing treaty stipulations contemplated related to laborers. In previous notes I have fully set forth the views of my Government on this point, and do not deem it necessary to further amplify them.

I can not, however, refrain from alluding to the fact that your Government could not object to the practice of reciprocity, and that if certain classes of Chinese are prohibited from entering the United States the Chinese Government would be justified in prohibiting the entrance into China of the same classes of Americans. Hence if the regulations enforced lately by the Immigration Bureau be continued, the Chinese Government, in due reciprocity, would be expected to prohibit the coming into China of all missionaries, whether clergymen or laymen, of all bankers, of all civil and mining engineers, of all railroad contractors, builders, or operators, of all commercial brokers, and of all merchants who did not have an established place of business.

Second. The Chinese Government would expect, in a revision of the Immigration Bureau regulations, that the existing definitions as to teachers and students would be abolished. They were admitted by the friends in the Senate of strict exclusion to be in derogation of the treaty, and upon their motion they were stricken out of the bill. It would also expect that the requirements respecting merchants not warranted by the treaty be changed.

Third. It would likewise expect a more reasonable observance of the treaty stipulation as to the transit of Chinese laborers through the United States. The regulations governing the transit of laborers have in recent years become so stringent and restrictive as to almost completely debar Chinese from enjoying this privilege. Many Chinese going from China to countries in Central and even South America have been detained en route, principally at San Francisco, and for some [Page 217] flimsy reason denied the privilege of transit and deported back to China. Thus this treaty stipulation is being practically ignored or nullified.

Fourth. When the treaty of 1894 was drafted, the conditions upon which a laborer lawfully in the United States could go to China and return were carefully set forth in detail, in Article II, and my Government hopes that these conditions will be followed, and that the Immigration Bureau will abolish the additional conditions which it has prescribed and which are inconsistent with the treaty.

As applicable to the last three points I desire to direct your attention to a well-known principle of international law, of which the United States has been a conspicuous and successful champion, to wit, that the terms and stipulations of a treaty can not be modified or enlarged by conditions added by one party alone to the convention. You are doubtless too familiar with the well-known Winslow extradition case to make it necessary for me to recall the facts in detail. In that case the British Government sought to add a condition of surrender which was not in the treaty, and justified its conduct by citing an act of Parliament passed after the treaty had been signed. In a careful review of the law and precedents, Secretary Fish, March 31, 1876, said:

This involves the question whether one of the parties to a treaty can change and alter its terms or construction or attach new conditions to its execution without the assent of the other—whether an act of the Parliament of Great Britain, passed in the year 1870, can change the spirit or terms of a treaty with the United States of nearly thirty years anterior date, or can attach a new condition, to be demanded of the United States. * * * The President can not recognize the right of any other power to change at its pleasure, and without the assent of the United States the terms and conditions of an executory agreement in a treaty solemnly ratified between the United States and that power. (United States Foreign Relations, 1876, pp. 215, 217).

When the correspondence was communicated by the President to Congress, he said:

It is assumed that under an act of Parliament Tier Majesty may require a stipulation or agreement not provided for in the treaty as a condition to the observance by her Government of its treaty obligations toward this country. This I have felt it my duty emphatically to repel. (Richardson’s Messages, Vol. VII, p. 372.)

The President proceeded to show that such a course must be regarded as an abrogation or annulment of the treaty. The British Government, moved by the justice of the argument, yielded the point in controversy. (Richardson’s Messages, VII, 415.)

Certainly if the United States would protest so strongly against such a course by Great Britain, it would not practice the same course itself against China. When the two Governments, after very careful investigations, determine and specify the conditions under which Chinese laborers in the United States can leave the country and return, no new conditions can be added. And when they specify the character of the certificate which a merchant, student, or teacher must have to entitle them to admission into the United States, it is not proper for the Immigration Bureau, or even for Congress, to prescribe an altogether different kind of a certificate or add conditions not warranted by the treaty.

I have felt it my duty, in the interest of preserving and continuing the treaty of 1894 in full vigor, to submit the foregoing views to your consideration, and to urge the propriety and necessity of a revision at this time of the regulations of the Immigration Bureau. And my Government cherishes the hope that under its new management this [Page 218] Bureau will manifest a better disposition for the observance of the stipulations of the treaties.

In conclusion, I would respectfully request that you will kindly lay the above views before His Excellency the President for his earnest consideration and appropriate action.

Accept, etc.,

Wu Ting-fang.