by reason of the tenancies which have been established therein since its abandonment by us, it seems undesirable to press the matter further at present. The Government of the United States will, however, expect to have equal favors and facilities with other powers for military purposes at Tientsin, should it at any future time become necessary to carry out the purposes of the protocol with respect to keeping open communication between Pekin and the sea; and if effective assurance in this regard be given we may leave the question of a commercial concession in abeyance until the development of commerce in that quarter shall make it necessary to claim privileges and facilities on the same footing as other powers. We would feel it a duty to reserve our right in such a case.

It is to be remembered that circumstances have materially changed since the United States relinquished its holding at Tientsin, and that we have entered into conventional arrangements, and engaged in contingent obligations which may make it not only expedient, but necessary to secure a position of equality at Tientsin in matters of commerce and international policy, if our purposes in the direction of enlarged intercourse and the maintenance of close relations of good will with China as well as with the powers are to be effectively carried out, and, consequently, that we can not neglect any step conducive to those beneficial ends.

I am, etc.,

JOHN HAY.

EXCLUSION LAWS-CASE OF ALLEGED CHINESE STUDENT, YIP WAH, AND OTHERS.

Mr. Wu to Mr. Hay.

No. 199.]

CHINESE LEGATION, Washington, November 30, 1900. SIR: It is again my unpleasant duty to bring to your attention what seems to me to be another effort on the part of the subordinate authorities of the Treasury Department of the United States to distort the language and defeat the plain intent of the solemn treaty stipulations entered into between the United States and China. The present case is of such a character that I feel sure you will agree with me that it demands the attention of the President of the United States, and the exercise of his supreme authority to bring about a proper observation of these international stipulations.

The present case is one which involves the construction of Article II of the treaty of 1880, which became Article III of the treaty of 1894, and of section 6 of the act of Congress of July 5, 1884, passed to give effect to the treaty. The treaty guarantees to Chinese subjects, being students, the right of coming to the United States and residing therein. To establish the right of the Chinese student to enter the United States, section 6 of the act of Congress requires that he should produce the certificate described therein, giving in detail his history and status, issued by the Chinese Government, and viséd or indorsed by the United States consul at the port of departure of the student; and the act makes it the duty of the United States consul, "before indorsing such certificate, to examine into the truth of the statement set forth in such certificate, and if he shall find upon exami

nation that said or any of the statements therein contained are untrue, it shall be his duty to refuse to indorse the same."

In accordance with the treaty and act of Congress, Yip Wah, a Chinese subject, arrived at San Francisco, and produced the student certificate above described. No allegation is made that the certificate was not in due form according to the act of Congress. But the student was refused admission into the United States by the collector of the port of San Francisco, and, upon appeal had to the Commissioner of Immigration, the decision of the collector was sustained, and unless the President shall interpose his authority Yip Wah will be compelled to return to China.

The grounds of the decision refusing the admission of this student are set forth in the letter of the Assistant Secretary of the Treasury to the collector of San Francisco, a copy of which has by the courtesy of the honorable Commissioner of Immigration been furnished me, and which I inclose for the information of the President and yourself. It appears from this decision that a Chinese subject can not establish his character as a student by showing, as an applicant for admission into the United States, that he "was simply an attendant upon the native schools of China," and that he "intends to continue his studies here." I have to confess, Mr. Secretary, that such a decision sounds strange to me, in view of the treaty and the law. I can not conceive of any other way in which a Chinese young man can establish his right of admission into the United States. But the decision makes clear what is the position of the Treasury Department on this point. It appears that the only evidence, other than the certificate, upon which the collector based his action was the statement of the applicant himself to the effect that he had been an attendant on the native schools of China and that he came to the United States to continue his studies, avowedly to acquire a profession, "for which he has thus far not even established a foundation, being entirely ignorant of the English language." The construction thus given to the treaty and the law is that a Chinese subject in order to gain admission to the United States as a student must first acquire a knowledge of the English language. The further declaration of the applicant that upon his return to China he does not intend to practice as a physician, but to work with his father,' who is engaged in business in Canton, can not properly be held to affect his right of admission. This statement was made by a youth undergoing an inquisition by an official of whom he stood in awe, and even if taken in its fullest future application can not militate against his treaty right of entrance. No suspicion is thrown upon the sincerity of his intention to pursue his studies. Neither the treaty nor the law has to do with his pursuit after he leaves the United States and returns to China. The object of the law was to restrict the immigration of laborers, and plainly the facts show that the applicant does not belong to the laboring, but to an exempt, class.

66

I beg you, sir, to consider what effect this decision will have, if the President allows it to remain as the proper construction of the treaty and the law. It is in effect a requirement that all Chinese subjects, coming to the United States to pursue their studies or prepare for a profession must show that they possess a knowledge of the English language. You are well aware of the fact that for many centuries the Chinese Government has maintained an extensive system of general instruction and made it the basis and test of admission to the public

service, so that the youth have great facilities for acquiring an education. But up to the present there are few schools in which the English language is taught. To acquire this knowledge most of the young Chinese would have to resort to some school established by the missionaries, which would be repugnant to the ideas of the great mass of the inhabitants, and, even if this prejudice could be overcome, the places where such schools are to be found are very few compared to the vast population of China. One of the leading objects of Chinese students in taking advantage of the treaty right to come to the United States is to acquire a knowledge of the language. In the past many hundreds of Chinese have been sent to this country, some of them by young men the Government, and it was understood with the cordial approval of the Government of the United States, and placed in school at private or Government expense, the great majority of whom had no knowledge of the English language. The law of the United States was the same then as now.

may

We read in the history of the human race that once a powerful sovereign made himself infamous by requiring a foreign people to make bricks without straw; that is, he ordered them to accomplish a certain task without affording them the proper facilities to execute his decree. The United States, it is understood, is now concerting with other great powers certain measures whereby the people of China be induced to adopt such principles and methods of government society, as will make them more in harmony with the Western nations. And yet, if the decision which has given occasion for the present note is to be confirmed by the President, it effectually closes the doors of the institutions of learning in America to the great mass of Chinese students who desire to come to this country to learn its language and thereby study its governmental and social system, in order that on their return to their own country they may profit by this education.

I inclose with the letter of the Assistant Secretary a copy of a letter from the attorney in San Francisco of Yip Wah, containing an argument on his part to sustain the appeal, and to which also I ask your attention. With the foregoing statement I submit the case to you, feeling confident that the President, with the spirit of justice which has so distinguished his public life, will not allow this illiberal and unreasonable decision to stand.

Accept, etc.,

WU TING-FANG.

[Inclosure 1.]

The Assistant Secretary of the Treasury to the Collector of Customs at San Francisco.

TREASURY DEPARTMENT,

OFFICE OF COMMISSIONER-GENERAL OF IMMIGRATION,

Washington, November 21, 1900.

SIR: Under cover of your letter of 16th instant the Department is in receipt of the papers on appeal in the case of Yip Wah, a Chinese person who sought admission at your port with a section 6 certificate as a "student," and whom you denied on November 12, 1900.

You will note by reference thereto that the act approved July 5, 1884, section 6, provides among other things that the certificate therein mentioned "shall be the sole evidence permissible on the part of the person so producing the same to establish a right of entry into the United States; but said certificate may be controverted and the facts therein stated disproved by the United States authorities."

It is noted in this case, and in others of a similar character, that evidence is sought to be produced to verify the claims made in such certificate in behalf of the appellant, a practice which is reprehensible as being in direct contravention of the above-quoted language. The certificate itself is but prima facie evidence of the right of the alien to land, and it is the duty of Government officers to scan the statements contained therein with a view to determining whether in fact the claim of the applicant is true. The only part of the examination conducted in this case by the Chinese inspectors which seemed to have this end in view, rather than a purpose of confirming the statements in the certificate, was the examination by Inspector Lynch of the applicant himself. In the opinion of the Department this examination shows that applicant was simply an attendant upon the native schools of China, as any other young person of that country might naturally be, but fails to show that he was a student in the sense of the law. If the act is to be construed as meaning that all young persons who have attended schools in China are students, and therefore, upon their declaration only to that effect, are to be admitted to this country upon the ground that they intend to continue their studies here, it would appear that the possession of such a certificate as that presented by the applicant in this case would not be prima facie but conclusive evidence of his right to admission.

This view of the case the Department is not prepared to entertain. The applicant upon his own showing has followed the ordinary course of study of young persons, and comes here professedly to acquire a profession for which he has thus far not even established a foundation, being entirely ignorant of the English language, and asserting, moreover, that upon his return to China he does not intend to practice as a physician, but to work with his father, whom he states to be the proprietor of a grocery business in Canton. The statement of counsel in applicant's behalf to the effect that his client is "coming here to commence and finish his education" agrees with the view of the Department that applicant's status as a student in his native country is not established.

In view of the foregoing consideration the Department is of opinion that your action, based upon the belief that the bona fides of the applicant as a student is not established, was well taken, and the appeal is therefore dismissed.

Respectfully,

H. A. TAYLOR, Assistant Secretary.

[Inclosure 2.]

Mr. Pippy to Mr. Wu.

SAN FRANCISCO, November 14, 1900.

SIR: Inclosed please find a copy of a brief I have this day sent to the Treasury Department in a section 6 student case.

It appears from the action of the collector here that he does not desire to land any students at all, there being a number of cases held pending a decision in this matter. It seems to me that this is a direct contravention of the rights of the Chinese granted under the treaty.

This matter is of vital importance to quite a number of your countrymen, and I would respectfully submit that some influence be brought to bear upon the Department in Washington, in order that the collector at this port may be taught his duty and be prevented from overriding the treaty between the United States and China. I am, etc.,

GEO. H. PIPPY.

[Subinclosure.]

Brief in behalf of Yip Wah-Mr. Pippy to the Secretary of the Treasury.

SAN FRANCISCO, November 13, 1900. SIR: I most respectfully submit that the application of Yip Wah, ticket No. 87 "ex Gaelic," October 28, 1900, for permission to land as a student, should be granted. In support of my position I contend that every requirement of section 6 of the treaty between the United States and China, as amended July 5, 1884, has been complied with. The certificate of the applicant is made out in due form and contains everything required, not only under the treaty, but also under the regulations of the Treasury Department.

The applicant's statement is uncontradicted and bears out all the statements set forth in the certificate.

I most respectfully refer to a letter of the honorable Mr. Spaulding to the collector at this port under date of December 12, 1899, in the case Wong Hay, a Chinese student 14 years of age, in which the following language is used: "In view of the youth of the applicant, which would undoubtedly disqualify him for laboring work, it is deemed advisable to authorize his admission, notwithstanding the discrepancies referred to, and the appeal is therefore sustained. As has heretofore been stated to you, the admission of adult Chinese as students is not favorably regarded by the Department, but the admission of Chinese youths upon section 6 certificates describing them as students is more readily justifiable.'

I beg leave to quote from an opinion of Mr. M. D. O'Connell, Solicitor of the Treasury, to the Secretary of the Treasury, dated July 10, 1900, in the case of Li Ip, a student, in which the following language is used: "The object itself challenges a general spirit on the part of all who are interested in the encouragement of young men who are aspiring to a higher education, especially to a knowledge of our language, and so far as the ambition of the student is honest and bona fide he should be freely granted all the rights that the statute affords to him."

The act of September 13, 1888 (25 Stat., p. 476), section 2, certainly establishes the right beyond question of the applicant herein to a landing, he having complied with the requirements of the Treasury Department as set forth in pages 17 and 18 of the laws issued by your Department July 10, 1899.

There is no question but what under the existing treaty between the United States and China, and under all the acts of Congress, as well as the regulations of the Treasury Department, the applicant herein having proven beyond a doubt that he is a bona fide student, taking not only the primary but the higher courses, is certainly entitled to be landed, and I challenge the production of any good reason to the contrary. Respectfully submitted.

No. 163.]

GEO. H. PIPPY, Attorney for Yip Wah.

Mr. Hay to Mr. Wu.

DEPARTMENT OF STATE,

December 5, 1900.

SIR: I have the honor to acknowledge the receipt of your note, No. 199, of the 30th ultimo, calling attention to the case of Yip Wah, a Chinese subject, claiming to be a student, whose right to remain in the United States is denied by the collector of customs at San Francisco. The case having been appealed to the Treasury Department, the action of the collector has been sustained by that Department.

You state that the case seems to you to be another effort on the part of the subordinate officials of the Treasury Department of the United States to distort the language and defeat the plain intent of the solemn treaty stipulations entered into between the United States and China, and you suggest that the present case is of such a character as to demand the attention of the President of the United States and the exercise of his supreme authority to bring about a proper observance of these international stipulations.

In reply I beg to say that in the Department's view the immigration acts do not confer upon the President any power to interpose in the matter. The act of August 18, 1894, provides that "in every case where an alien is excluded from admission into the United States under any law or treaty now existing or hereafter made, the decision of the appropriate immigration or customs officers, if adverse to the admission of such alien, shall be final, unless reversed on appeal to the Secretary of the Treasury.'

The substance of your note has been communicated to the Secretary of the Treasury for his consideration.

Accept, etc.,

JOHN HAY.