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. 171-190.) 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

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 å 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 Her 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

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.

Mr. Hay to Mr. Wu.

No. 228.]

DEPARTMENT OF STATE,
Washington, May 26, 1902.

SIR: I have the honor to acknowledge the receipt of your note No. 247, of the 19th instant, on the recent discussion in Congress regarding the Chinese-exclusion bill and its action in the matter, and stating what your Government expects regarding the execution of the new law.

Your request that your note be laid before the President has been complied with.

Accept, etc.,

JOHN HAY.

Mr. Hill to Mr. Wu.

No. 234.]

DEPARTMENT OF STATE,
Washington, July 22, 1902.

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 the 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 adminis tered. 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

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

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 am, for that reason, unable to make the desired modifications.

Accept, etc.,

DAVID J. HILL,

Acting Secretary.

Mr. Wu to Mr. Adee.

No. 255.]

CHINESE LEGATION, Washington, August 20, 1902.

SIR: I have had the honor to receive the note of your Department of the 22d ultimo, in which you embody the views of your honorable colleague the Secretary of the Treasury regarding the suggestions made by me as to the spirit in which the laws of the United States for the immigration of Chinese should be enforced, in view of the recent action of Congress.

In my note of May 19 last I set forth the reasons which induced me to make the suggestion, and I have no desire to elaborate them more fully at this time. I shall, therefore, as briefly as possible notice the points of the letter of the Secretary of the Treasury, which seem to call for some reply on my part.

I beg to assure that high official that I was not laboring under any misapprehension as to the authority by which the regulations as to Chinese immigration were issued. I was quite aware that they appear by the authority of and in the name of the Secretary of the Treasury. I'merely followed the common language in use in referring to them as regulations of the Immigration Bureau. But at the same time I suppose I am not in error in believing that these regulations are drafted by the Bureau, and that in passing upon them the Secretary is greatly controlled by the views and information which he receives from the Bureau officials. Hence I deemed it opportune to make the suggestion I did, in view of the change in the head of that Bureau, which the President had found it necessary to make.

Neither do I think the honorable Secretary is warranted in the inference that I was misled as to the significance of the debate in and the action of the Senate on the Chinese immigration bills before that body. It was clearly understood that the bill reported by the Committee on Immigration was drawn up in consultation with the officials of the Immigration Bureau, and it certainly did seek to enact into law the regulations of the Treasury Department against which I have had so much occasion to remonstrate and which are briefly specified in my note of May 19.

Each one of the sections of the bill containing these objectionable regulations was openly attacked by Senators as unjust or violative of the treaties, and the Senate by a distinct vote refused to incorporate