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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.

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SIR: Referring to your note No. 108 of November 7 last, expressing your views relative to the opinion rendered by the AttorneyGeneral to the Secretary of the Treasury, dated August 31 last, regarding the authority under existing laws of consular officers of China in a foreign country to issue certificates prescribed by section 6 of the Chinese exclusion act of July 5, 1884, and expressing also your views relative to an opinion rendered by the Attorney-General to the Secretary of the Treasury, dated July 15 last, 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, I have the honor to inform you that a letter has been received from the Attorney-General on the subject, dated the 23d ultimo. In his letter the Attorney-General states that, while he is not able to perceive any valid reason for modifying the opinions referred to, he would be pleased, nevertheless, to have the question raised submitted to the courts for determination, if you are desirous that such a step should be taken, and that, upon a suggestion or request from this Department to that effect, he would proceed, in conjunction with the Secretary of the Treasury, to bring forward cases as soon as possible which would submit for judicial determination the questions covered by his opinions aforesaid.

In line with the Attorney-General's suggestion, I beg to request that you will favor me with an expression of your views as to his proposed action.

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SIR: Referring to our interview on the 14th instant, at which you desired me to ask the Attorney-General by what process cases of exclusion from the United States of Chinese subjects of the exempt classes, referred to in his letter of the 23d ultimo, could be brought before the United States Supreme Court for decision, I have the honor. to inform you that I am in receipt of a letter from the AttorneyGeneral of the 19th instant, answering the inquiry.

In his letter the Attorney-General says that the court could not be given jurisdiction upon an agreed statement of facts, but that a case in which the question arises will have to be taken through the various courts to the Supreme Court. He adds that he has written to the Secretary of the Treasury asking whether any case is now pend

ing in which the questions are involved, and which might be brought to the Supreme Court for its decision, and that he would be glad to confer with the counsel of your legation upon the subject.

Accept, etc.,

Mr. Wu to Mr. Hay.


No. 120.]

CHINESE LEGATION, Washington, January 25, 1899.

SIR: I have the honor to acknowledge the receipt of your note of the 4th instant, in which, replying to my note of November 7 last, you inform me that while the Attorney-General sees no valid reason for modifying the opinions which were the subjects of my note, he suggests that, should I be desirous that such a step should be taken, he would proceed, in conjunction with the Secretary of the Treasury, to bring forward cases for judicial determination of the questions involved in his cited opinions, and you thereupon request an expression of my views on the proposed action of the Attorney-General.

I thank you and your colleague, the Attorney-General, for the friendly disposition manifested in this communication, but I regret to have to say that I do not think the proposition is one concerning which it would be proper for me to express an opinion. My Government could not be a party to such a suit, nor could it appear, by counsel, before a domestic tribunal of the United States for the purpose indicated. While I have the highest estimate of the ability and impartiality of the Supreme Court of the United States, and for that reason would have confidence it would place the same construction upon the treaty which is maintained by my Government, at the same time the questions submitted by me to you in my note of November 7 last were of a diplomatic character, involving the construction of conventions entered into between two equal and sovereign Governments, and I could not, by any action on my part, recognize the competency of a domestic tribunal of one of the parties to take such action as would irrevocably bind the other party to the convention. If I am not misinformed, the Supreme Court of the United States has already decided, in what is known as the Scott Law Case, that if the Congress of the United States legislates in direct violation of the treaty, the courts of the United States must respect and enforce the legislation; but I understand it recognized in the same decision that such legislation did not release the Government of the United States from its international obligations under the treaty. And however much the courts may feel bound to follow the legislation of Congress, I apprehend you will not contend that adverse legislation or the judgment of a domestic tribunal can release a Government from its solemn treaty obligations.

It would be very gratifying to my Government to know that cases which had been brought forward by the administrative officers having charge of the enforcement of the stipulations of the treaty regulating the admission of Chinese subjects into this country had been decided in accordance with the intent of the high contracting parties in framing the treaty; and I can not believe that any legislation of Congress since the treaty of 1894 has been contrary to that intent and to the language of the treaty. Hence I feel sure if such cases were carried

up to the highest tribunal of this country that august body would coincide with the views set forth in my cited note; but, for the reasons stated, I trust you will not regard me as wanting in courtesy if I excuse myself from expressing an opinion on the course to be pursued by the executive and administrative officers of the United States with a view to testing the legality of their action.

While writing the above, I had the pleasure of receiving your note of the 23d instant, giving me the Attorney-General's answer to my inquiry as to the process by which cases of exclusion from the United States of Chinese subjects of the exempt classes could be brought before the United States Supreme Court for decision. As I have already given above an expression of my views on the subject, it is hardly necessary for me to say anything further in regard to the course indicated by the Attorney-General in submitting the questions raised to that august tribunal.

Accept, etc.,


Mr. Wu to Mr. Hay.

No. 156.]

CHINESE LEGATION, Washington, December 1, 1899.

SIR: Under date of November 7 of last year, it became my duty to lay before you the views of my Government respecting two opinions of the Attorney-General upon the laws and treaties relating to the admission of Chinese into the United States. These opinions, in view of my Government, were in direct opposition to the true intent and meaning of the treaties, and neutralized their effect in important particulars to the serious injury of many Chinese subjects.

It is not my purpose at this time to repeat the reasons then given, which seemed to me conclusive, but in connection with the second opinion, discussed in my note relating to the persons included in the exempt class, I desire to add a fact not then noticed by me. I gave reasons to show that the opinion was in direct opposition to the understanding of the negotiators of the treaties between the two countries and to the spirit of the laws of the United States, and I now add that it is in direct opposition, also, to the previous rulings of the executive officer of the United States, who is charged by the laws with the enforcement of the treaties. The Secretary of the Treasury at that time, the Hon. John G. Carlisle, in the regulations of 1893, published for the enforcement of the laws of the United States respecting the Chinese, made the following declaration for the guidance of the officers of the United States: "No class of Chinese are prohibited from coming into the United States, or remaining here, except such as may properly and within the meaning of said statutes be known as laborers. (See series 7, No. 18, U. S. Internal Revenue, 1893, p. 9.)

It is needless for me to say to you that Mr. Carlisle is not only a statesman intimately acquainted with the spirit and policy of his Government, but that he is one of the first lawyers of his country. After the treaty of 1894 went into effect-that is, in 1896 -new regulations were issued from the Department of the Treasury, signed by the Acting Secretary, the Hon. Charles S. Hamlin, to whose bureau Chinese matters especially belonged, and in which the declaration above quoted also appears, with this additional statement: "The per

sons referred to in the acts of Congress to which these regulations apply, and whose immigration into the United States is prohibited, are limited to Chinese laborers." (See Regulations, 1896, p. 9.) Thus it will be seen that from the passage of the first exclusion act in 1882 until July, 1898, when the opinion of the Attorney-General above referred to was given, for a period of sixteen years the prohibition to enter the United States was distinctly confined to Chinese laborers only, other classes not being included in the prohibition-a uniform course of procedure long enough followed to establish a precedent and custom until it was suddenly set aside by the said contrary opinion. In view of this conflict of opinion on the part of the highest officials of the United States, I think it my duty to repeat the request made my cited note, that His Excellency the President would take cognizance of this question, and would investigate whether the terms of solemn treaties are not being distorted from their original purpose and their just interpretation, and whether relief may not be given to the Chinese subjects now suffering from the enforcement of the opinion of the Attorney-General.


If this can not be done, I respectfully request that you will take up with me for negotiation an additional clause of the treaty of 1894, to make clear and place beyond the cavil of any lawyer the true scope and meaning of Article III of that instrument. In view of the wellknown intent of the negotiators of that treaty, and of the friendly sentiments which you entertain for my country, I make this request with much confidence and hope.

Accept, etc.,


Mr. Hay to Mr. Wu.

No. 121.]

Washington, January 5, 1900.

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.

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

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