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,

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 AttorneyGeneral.

SIR: I have the honor to call your attention to the case of Lei Yok, a Chinese merchant, who has been detained by the customs authorities at New Orleans while on his way from Habana to San Francisco, notwithstanding the fact that he is provided with the proper certificate required by the Chinese-exclusion acts. I inclose copy of a letter from Mr. Li Yung Yew, consul-general at Habana, which gives the facts of the case.

The action of the customs authorities at New Orleans was, I am led to believe, in accordance with the instructions of the Treasury Department to refuse admission to all Chinese provided with consular certificates. I pointed out to you in my note of the 7th of November last that the narrow construction given by the Attorney-General to the treaty of 1894 in denying the power of Chinese consuls to issue certificates thereunder was entirely unsupported by external and internal evidence, and it is a great injustice to Chinese residents in foreign countries to change a practice of long standing (sanctioned by previous Secretaries of the Treasury and Attorneys-General) and require them to obtain other than consular certificates in places where Chinese consuls reside.

Now, Mr. Lei Yok is a bona fide merchant, and as such is entitled to enter this country. The certificate of identity he holds seems regular in every respect and to comply with the requirements of the exclusion laws. I have to request that you will kindly cause instructions to be issued, through the honorable the Secretary of the Treasury, to the collector of customs at New Orleans to release Mr. Lei Yok from detention and allow him to proceed to San Francisco without delay. Accept, etc.,

WU TING-FANG.

[Inclosure.]
Mr. Li to Mr. Wu.

CONSULATE-GENERAL OF CHINA,
Habana, December 12, 1898.

SIR: I have the honor to state to your excellency' that on the 6th of September last this office issued a passport, No. 1016, in favor of a Chinese subject named Lei Yok, of 21 years of age, a merchant for the last four years in Habana, at No. 21 Zanja street, where he is partner to the extent of $3,000 in the Chinese firm of Tuck Chung Yuen, to enable him to leave the island on his way to San Francisco, Cal., where he is the proprietor of an establishment under the firm name of Tai Seng Tong, at 929 Dupont street.

He left Habana on the 11th of November by steamer Whitney for New Orleans, and on his arrival there the customs authorities refused to let him proceed on his journey to San Francisco, and he is still, as I am informed, detained in that city. As his passport was in due form, issued by me, and viséd by the British consul in behalf of the United States Government, and the statements therein correct, as I know, and the proper visé was obtained from the Spanish governor of the province I am unable to account for this detention, and I have, therefore, to beg your excellency to take such steps as may be advisable in your opinion to have the cause of Mr. Lei Yok's difficulties explained and, if possible, removed.

I am requested by his friends to petition your excellency to be pleased to obtain if possible telegraphic instructions on the matter to the customs authorities at New Orleans, so as to shorten as far as may be the detention of Mr. Yok.

SIR: Referring to your note of the 21st ultimo, in relation to the detention at New Orleans by the United States customs authorities

there of Mr. Lei Yok, a Chinese merchant, I have the honor to inform you that a letter has been received from the Secretary of the Treasury on the subject, dated the 3d instant, in which he says that admission to the United States was denied to Mr. Lei in accordance with the instructions based upon the opinion of the Attorney-General, dated August 21, 1898, wherein it was held that there is no authority in existing laws under which consular officers of China in foreign countries may issue to Chinese subjects of the exempt classes the certificates prescribed by section 6 of the act of July 5, 1884. With that opinion you are already familiar.

The Secretary of the Treasury adds that until the opinions of the Attorney-General as to the construction of the laws governing the operations of the Treasury Department are overruled by the courts they are necessarily controlling upon that Department, and that it is therefore impracticable to direct the collector at New Orleans to release Mr. Lei.

Accept, etc..

JOHN HAY.

Mr. Hay to Mr. Wu.

No. 80.]

DEPARTMENT OF STATE, Washington, January 23, 1899.

SIR: Referring to your note of the 21st ultimo, and to mine in reply of the 11th instant, in relation to the detention at New Orleans of Mr. Lei Yok, a Chinese merchant, by the United States custom authorities there, pursuant to the provisions of the Chinese exclusion acts and the Treasury instruction based on the opinion of the Acting AttorneyGeneral of August 21, 1898, I have the honor to inform you that I am in receipt of a letter, dated the 19th instant, from the AttorneyGeneral in acknowledgment of one from this Department, sending him for his information a copy of the correspondence in the case.

In his letter the Attorney-General says he finds no ground to reopen the question in the case.

Accept, etc.,

JOHN HAY.

STATUS OF CHINESE IN HAWAIIAN ISLANDS.

Wu Ting-fang to Mr. Hay.

No. 110.]

CHINESE LEGATION, Washington, December 12, 1898.

SIR: I have the honor to bring to your attention the condition of the Chinese residents of the Hawaiian Islands, in view of the recent annexation of those islands to the United States.

At the time of that annexation there were residing in the Hawaiian Islands approximately 20,000 Chinese, who were established there in accordance with the laws of the Government, and under its protection and guarantee they had acquired various rights of person and property. By the terms of the joint resolution of the Congress of the United States, some of the most important of those rights have been suddenly suspended; and, if the policy therein declared shall be adhered to, an uncalled-for discrimination and manifest injustice will result to this large body of the population of the annexed territory. I can not allow

myself to believe that such has been the deliberate intent of the enlightened and liberal-spirited Congress of the United States; and actuated by this conviction I desire to bring to your attention, in the hope that you may see proper to lay the views of my Government before Congress, the situation of the Chinese residents of the Hawaiian Islands and the great injury and injustice which will be done them, if the provision of the joint resolution to which I have referred shall be embodied in the permanent legislation which is being contemplated by Congress.

By the laws and guarantees under which the Chinese population acquired residence in the Hawaiian Islands, they have been permitted to visit their native land and return, to bring to the island their families, to send their children home to be educated and their young men to be trained in mercantile pursuits, and to freely come and go as their business or convenience required. The statistics which I shall submit to you will show that a large number of the Chinese population have been born in the islands, and that a considerable number of those emigrated have become lawfully naturalized citizens of Hawaii. They also show that many of them have become holders of real estate, that they outnumber all other nationalities, native or foreign, as merchants and traders, and that in three of the leading branches of trade, as shown by the official licenses issued, they exceed all other nationalities. In social life, also, their position is worthy of consideration, as it will be seen that of the Chinese population over 6 years of age 48.47 per cent are able to read and write English or Hawaiian; of Chinese children over 6 years 92 per cent attend school, and many of them have been educated in the Government colleges and higher institutions of instruction; they are prominent in Christian churches, and in aiding in the support of hospitals and other charitable institutions; they freely intermarry with the native population; they are recognized as industrious, temperate, and law abiding, and as important factors in various social movements.

The reason which brought about the immigration treaty of 1880 between China and the United States, the treaty of 1894, and the legislation based on those treaties which exclude Chinese laborers from the United States, does not apply to the Hawaiian Islands. In this country it is alleged that Chinese labor comes in competition with white labor to the detriment of the latter, and that it is contrary to its interests to admit the Chinese; but exactly the reverse is the case in the Hawaiian Islands, as they come into competition with neither white. nor native labor, and have been and are regarded there as a desirable population. Hence it seems unnecessary and unreasonable to extend to the islands the operations of the present exclusion laws prohibiting the coming to the United States of all Chinese laborers.

I have recently had occasion to call your attention to the unwarranted strictness of interpretation which has been given by the Attorney-General and the Secretary of the Treasury to the treaties and United States laws respecting the Chinese, by which the treaties have been so interpreted as to exclude from this country a large class of the highest and best of Chinese subjects. In view of what is herein shown to be the status of the Chinese population of Hawaii, it would be a serious aggravation of the complaint I have already thought necessary to present to you if the same interpretation should be applied to those islands.