Mr. Hill to Mr. Wu .

No. 234.]

Sir: Referring to your note No. 247, of May 19 last, on the recent discussion in Congress regarding the Chinese-exclusion bill and the action of that body in the matter, and stating what your Government expects regarding the execution of the new law, and referring also to the Department’s note No. 228, of May 26, informing you that your note had been laid before the President, I have the/honor to inform you that the Department is in receipt of a letter from the Secretary of the Treasury on the subject, dated the 15th instant, in which he says:

I have the honor to acknowledge, by transmission from Hon. George B. Cortelyou, secretary to the President, your letter of May 23 last, inclosing copy of a communication from the Chinese minister at this capital in which he makes certain statements in regard to the administration of the treaty and laws in relation to tin; exclusion of Chinese, and suggests that his Government would accept a modification of certain designated features of such administration as a preliminary to consideration by it of a new treaty at the termination of the one last entered into with the United (States Government.

It is noted that in Mr. Cortelyou’s letter he states that it is the President’s wish, if no reason to the contrary is known to the Department, that what the minister asks should be done.

After a careful perusal of the minister’s letter, I can but think that he is in some respects laboring under misapprehension. Thus he has evidently been misinformed in regard to the regulations under which the Chinese-exclusion laws are administered. All such regulations are Department, not bureau regulations, are established by the Department and administered through the Bureau of Immigration. The said laws nowhere confer authority upon anyone other than “the Secretary of the Treasury” to issue regulations for the enforcement of their provisions, nor have regulations established by any other or subordinate authority governed the actions of the officers in the administration of the Chinese-exclusion laws.

As a general reply to the objections urged to those regulations by the Chinese minister, it should be said, so far as those objections are urged on the score of alleged undue strictness, that the records of the Department will show that they were issued from time to time to counteract the ingenious devices which were persistently [Page 219] resorted to by Chinese persons to gain admission to the United States either in disregard of the conditions precedent thereto prescribed by law or in defiance of its plain inhibition. It seems hardly necessary to argue that, from the point of view of an administrative officer, leniency in the enforcement of the law has no merit if it involves in any degree the failure of its effective enforcement. The much more serious objection is made, however, that the regulations are in violation of the treaty obligations, and the minister states, in support of such view, that they were so characterized by Senators in the course of debate upon some of the measures reported to the Senate to succeed the legislation which expired by limitation on May 5, 1902. The minister quotes, however, upon this subject the only expression of the views of Senators that can be deemed authoritative by the Department, and that is the language of the measure which became a law and by which it is provided that “all laws now in force, etc., * * * are hereby reenacted, extended, and continued so far as the same are not inconsistent with treaty obligations.”

It seems reasonably certain that the minister has in this respect also been misled by the expressions used in debate as to the opinion entertained of the regulations, for it can not be assumed that any pronounced conviction upon the part of the Senate that said regulations were violations of our treaty obligations would not with so favorable an opportunity for such action have found expression in definite legislative terms adequate to correct an administrative wrong of so unquestionable a nature instead of language which referred solely to consistency with those obligations of the laws enacted by Congress itself. I must dissent, therefore, from the opinion expressed by the minister that the action taken by Congress is susceptible legitimately of the construction, even by implication, that it was expressive “of the decided disapproval of the conduct and practice of” any branch of this Department.

The appropriate source, however, of interpretation and instruction to which administrative officers must resort is, pending the judicial findings by the courts, the Department of Justice, to which this Department has applied and from which it has received the constructions of the treaty upon which its regulations are based. Thus, in reply to the specific complaints in the minister’s letter, the regulations defining “students” is based upon an opinion of the Solicitor of the Treasury Department rendered June 5, 1900. There is no regulation defining “teachers,” though in practice it has been found necessary to construe the term strictly to avoid violations of the treaty by those who apparently believe that any Chinese person who taught is, ipso facto, “a teacher,” and entitled to admission whether he teaches as an occasional undertaking or as a source of earning a livelihood; whether qualified to teach more than the merest rudiments or an accomplished scholar, and regardless of his inability to reasonably assure administrative officers that he would not be at once compelled to resort to manual labor for support.

It is unnecessary to say more in reply to the minister’s observations in regard to the regulations governing the transit of Chinese laborers through the United States than that they have recently been under review by the Supreme Court in the cases of Fok Young Yo and Lee Con Yung, and on May 5, 1902, the regulations and the action of the officers thereunder were both sustained, after full consideration of every objection upon any score that was urged against them. I can not believe, whatever the view the minister may hold as to the action of the Department, that he means to convey the impression that the chief judicial tribunal of the United States would sustain any administrative act that is violative of the treaty obligations of this country.

The minister further objects to the regulations recently adopted with reference to the return to the United States, after temporary absence therefrom, of registered Chinese laborers, regulations adopted after consultation with the Solicitor of the Department and his written opinion that they conformed to the provisions of Article II of the treaty. The change from the regulations theretofore in operation was made for the express purpose of bringing the practice of the administrative officers into harmony with the treaty, such practice having been up to that time a compliance with the provisions of sections 5, 6, and 7 of the act of September 13, 1888, legislation antedating said treaty.

There remains for consideration but one other specific complaint of the minister, and that is the regulation which excludes other Chinese persons than laborers. This regulation is based upon an opinion of the honorable the Attorney-General of July 15, 1898, in which he holds that “the true theory is not that all Chinese persons may enter this country who are not forbidden, but that only those are entitled to enter who are expressly allowed.” (See Article III of the treaty.)

It seems superfluous to say that it is the purpose of the Department to scrupulously observe, in administering the laws committed to it, the rights, whether defined by treaty or secured by law, of the countries and individuals affected thereby; but it can not, with a due regard to its own obligations, omit any lawful means within its power [Page 220] to make such laws effective of the purposes which they were intended to accomplish. The near approach of the time, by the expiration of the convention of December 8, 1894, for consideration by the two contracting powers of the terms of a new treaty, and the suggestion by the minister that the representatives of the United States could not consistently object to a system of general exclusion on the part of his Government against citizens of this country, as a means of retaliation, are subjects which address themselves rather to the legislative branch of the Government than to the Department, and require, therefore, no reply at my hands.

With respect to the modifications of existing regulations, suggested by the minister, I trust that it has been made clear herein that, since they are strictly in conformity with the construction placed upon the laws and treaty in relation to the exclusion of Chinese, by the courts and the law officers of the Government, the condition upon which the President expressed the wish for a compliance with the minister’s request does not exist, and that I am, for that reason, unable to make the desired modifications.

Accept, etc.,

David J. Hill,
Acting Secretary.