New-York tribune. [volume] (New York [N.Y.]) 1866-1924, 1906-01-15

one Of The most important of these being referred
to IN the following Enthusiastically happy terms:
But the to 6s gt the eoo gSGy a OF m
justice and wrong have been done by this nation
this nation Itself Chinese students business and
professional men Of all knds-not only merchants.
travellers and the like-should be encouraged to
footn that e reat stndeG9s BUSINESS men fTav
ellers and the like Of other nations Our laws ana
people in the excepted classes but state that we
Will admit all Chinese except Chinese OF me ooone
The President thus seeks to secure a change in
the prevailing policy OF treating officials. teachers
students. merchants and travellers for curiosity OF
pleasure the only permitted classes each OF
these terms being, moreover. defined in most re-
stricted manner and "hucksters' for instance, be
ing expressly excepted from the class OF Iner-
chants, and numerous others by inpIcauoh Inns
theory that only expressly enumerated classes OF
Chinese non-iaborers may enter or remain here'
has been reduced by the Secretary Of Commerce
and Labor to the form Of a regulation binding
upon all his subordinates and has been so applied as
TO work the exclusion of thousands OF non-soorers
It received qualified support in opinions of Attorney
Generals Griggs C22 Opinions, 13O 2sO. referred TO
by the Department Of Commerce authority for
its regulations in Of which 1t was decided that
traders" are not privileged to enter and in the
other that merchants wife cannot enter-a de-
csion soon after directly overruled by the Supreme
Court before this regulation promulgated
The theory seems TO have been first applied oy
Judge Ross OF California. in 1893. in the case Oh
L S VS. All Fawn 81 Fed Rep. 591, which IN turn
was approved of by the United States Circuit court
of Appeals for the California Circuit IN May ISo1'
in the case OF Lee All Yin US. .. s.. u6 FED rep
614 The doctrine has never been approved oy the
United States Supreme Court, which, IN Iact' mas
several times declined to upon It, using terms
indicating doubt to its correctness co. .. vs.
Mrs Cue Lin 176 U. s. 459. 1923, 467; Chew Hong
vs.. L. S, 112 L. s.. 536. 542-S; Z. 5 vs. Jung An
Lung 124 U s. 62D. and in fact. the doctrine has
been rejected by the Supreme Court in as FAR as II
applies to the wife and minor children Of resident
non-Iaborers o. s vs. Mrs Cue Lin. 176 u s, 459),
as also to all non-laborers doIciled in the United
States O4au Ow Bew vs.. y. s, IA Q. s, ~ COM
pare Elk p. Ng Quong Ming, 135 F. r, 518 Holt, J)
though subsequent legislation has impaired the
rights of doniciIed merchants. at least. II these
statutes dealt with any subject other than Chinese
exclusion, to which race prejudice was aroused
fever heat decade or two ago. 1t WouIo nave
sufficed to point out that the usual principles OF
statutory construction fatal to the theory that
the term 'laborers is to be regarded as including
all non-aborers not expressly enumerated as such.
for the Of 1882 already contained specinc oet-
milton OF '1aborers, and the we'll established RUE
is that in the presence OF expressed definition,
there is no room for creating tnconstant one by
judicial legislative implication, but It has been the
strange fatality of these laws that judicial pTece-
dents treaties bills Of rights and Constitution have
all been authoritattvely ignored in dealing with
them.
The exclusive enumeration theory is supposed
to rest upon the Treaty with China Of 1880 (Artlcle
p, though more definitely reiterated, the govern
ent contends in Article III, Of the treaty or 1884,
which concededly expired on December l. 1904.
This construction was first placed upon It in any
court in the opinion of Judge Ross above referred
to- handed down thirteen years after the treaty Of
1880 signed, and the authority for this re-
markabIe construction of the word 'laborer, as
including all non-isborers not expressly enuner-
ated in the terms "teacher. student, merchant
and traveller for curiosity, was concededIy Iouno
not in tbs language OF that treaty itself. but IN
the supposed intention Of the trainers OF that
treaty as disclosed by their reports to our State
Department.
Before examining the report Of these negotia-
tons LEI US examine the treaty Of 1880 itself which
has thus been construed as sustaining this re-
uarkable contention Article I of the treaty
grants China's consent to legislation by the
United States regulating, limiting or suspendlng
''the coming of Chinese laborers': to make as
surance doubIy sure to the scope OF the classes
excluded. 1t IS expressly stated that the lin
ttation shall apply only Chinese who may go
10 the United States as laborers other classes
not being included in the limitarlon." Article II
Is the one invoked giving color TO this doctrine;
it simply provides that Chinese subjects, whether
proceeding to the United States teachers. stu
dents merchants or from curiosity, together with
their body and household servants. and Chinese
laborers who now IN the United States shall
be allowed 10 go and come Of their own free will
privileges inamunities and exemptions which are
accorded to citizens and subjects Of the most
favored nation" The treaty of 1858 between the
United States and China, known as the Burllngame
Treaty. which this treaty OF 1880 merely modified,
and did not repeal. in its Article v recognized
the mutual advantage Of the free migration and
emigration of their citizens and subjects, re-
spectiveIy. from the country to the other, for
purposes of curiosity Of trade, permanent
residents" and in Article VI provided that Chinese
subjects visiting or residing in the United States
shall enjoy the privileges, irnmunities and
exemptions in respect TO travel or residence as
may there be enjoyed by the citizens subjects
of the most favored nation The treaty Of 1880.
therefore as its unmistakable language indicates,
authorized the laws restricting the entry of Chinese
laborers only. and of other classes Of persons,
and all non-aborers were to continue to enjoy the
fullest and freest rights. In enumerating some
Of these classes in Article II OF the treaty OF 1880
or in using language broadly describing, rather
than defining classes of non-laborers, the purpose
obviously was not to define 'laborers." in
GLIDING all persons not enumerated, nor to do
what the treaty expressly declares shall not be
done to authorize exclusion Of persons other than
'Haborers" warrant for that had to be found In
what the treaty did not say. and hence Judge
Ross sought IL in the report Of the United States
commissioners OF the treaty negotiations But do
the treaty negotiations. reported even by our
own commissioners, IN any way justify any such
obstruction? II would that a careful exam
nation OF them leads to an emphatic negative n
swer even Il confne attention to the
reports of our own negotiators. and ignore the
scores Of Chinese diplomatic protests against our
course.
COMMISSION CONSIDERS QUESTIONS
After the federal courts had declared various
antt-Cbtnese Western State statutes Unconstitu-
tfonaI and the President Of the United States had
vetoed an act Of Congress regulating Chinese imn
grafton because confessedly volative Of the Treaty