File No. 15077/41–43.
Your instruction to the consul general informing him that the case of Mr.
Wong did not come within the purview of your instructions from the
department concerning the protection of Chinese in Ecuador is
approved.
In this connection your attention is called to the inclosed memorandum,
prepared by the law officer of the department, on the Ecuadorian
Chinese-exclusion law as affecting Chinese citizens of the United
States, with particular reference to the case of Wong Koon Hou.
[Inclosure.]
memorandum by the solicitor.
On December 30, 1908, Minister Fox to Ecuador advised the department
that he had declined to intervene in favor of one Wong Koon Hou, a
Chinese laborer, who desired to enter Ecuador from Peru in spite of
the laws of the former country prohibiting the immigration of
Chinese and who had applied to the consul at Guayaquil for
information as to his right so to do. It seems that Wong Koon Hou is
a native of Hawaii and was a citizen thereof at the time of its
annexation by the United States, and this is presumably the reason
for his appeal to the United States consul, although such appeal may
have been made because, under instructions from the department, the
legation at Ecuador exercises its good offices in case of need on
behalf of Chinese subjects residing in that country. However, it
does not appear that Wong Koon Hou has ever resided in Ecuador, so
that such instruction would apparently have no bearing upon this
case.
The joint resolution of July 7, 1898, providing for the annexation of
the Hawaiian Islands to the United States, prescribes that “no
Chinese by reason of anything herein contained shall be allowed to
enter the United States from the Hawaiian Islands.”
However, when a government was provided by Congress for the Territory
of Hawaii (act of Apr. 30, 1900, 31 Stat. L., 141) it was declared
(§4):
That all persons who were citizens of the Republic of Hawaii
on August 12, 1898, are hereby declared to be citizens of
the United States and citizens of the Territory of
Hawaii.
And all citizens of the United States residing in the
Hawaiian Islands who were resident there on or since August
12, 1898, and all citizens of the United States who shall
hereafter reside in the Territory of Hawaii for one year,
shall be citizens of the Territory of Hawaii.
At first sight, in apparent contradiction to said section 4 of the
act of April 30, 1900, is section 101 thereof, which provides:
That Chinese in the Hawaiian Islands when this act takes
effect may, within one year thereafter, obtain certificates
of residence as required by the act entitled “An act to
prohibit the coming of Chinese persons into the United
States,” approved May 5, 1892, as amended by an act approved
November 3, 1893, entitled “An act to amend an act entitled
‘An act to prohibit the coming of Chinese persons into the
United States,’ approved May 5, 1892,” and until the
expiration of the said year shall not be deemed to be
unlawfully in the United States if found therein without
such certificates: Provided, however.
That no Chinese laborer, whether he shall hold such
certificate or not, shall be allowed to enter any State,
Territory, or District of the United States from the
Hawaiian Islands.
This contradiction, however, is believed to be more apparent than
real, and to be satisfactorily explained by the Attorney General as
nonexistent in view of the “evident construction that section 101
applies and was intended to apply only to those Chinese who were not
citizens of the Republic of Hawaii on August 12, 1898. (23 Op. At.
Gen., 351.) It is held in this opinion that a Chinese person born or
naturalized in the Hawaiian Islands prior to the annexaton of that
Territory and who has not since lost his citizenship, is a citizen
of the United States. (See also 23 Id., 310.)
In this view of the case, then, it would seem that Wong Koon Hou is a
citizen of the United States and, as such, entitled to enter this
country. This being so, have we a right to protest against his
exclusion from Ecuador?
We have no rights in the matter by virtue of treaty obligations.
Moreover, we ourselves exclude Chinese of the laboring class. The
Chinese-exclusion law (act of July 5, 1884, Ch. 220, §15), provides
“that the provisions of this act shall apply to all subjects of
China and Chinese, whether subjects of China or any other foreign
power.” Under this provision, it has been held by the Attorney
General that natives of China who are subjects of Great Britain are
prohibited entrance into the United States. (20 Op. Atty. Gen.,
729.)
The Republic of Haiti by a law passed August 10, 1903, apparently
undertook to expel and exclude Syrians from that country. The
language of this act is ambiguous and the department conducted
considerable correspondence with Haiti1 as to its meaning. On August 29, 1905, the
department wrote the Haitien minister:
In view of these ambiguities [in the law] and in the absence
of any express adjudication of the Haitien courts declaring
that persons of Syrian origin who have in good faith and not
in fraud of the Haitien law obtained naturalization in the
United States are excluded by the terms of the law, this
Government does not feel that it can acquiesce in the
construction placed upon the law in your note.
[Page 245]
It seems to be fairly inferable from the language that in, the case
of a law unmistakably excluding Syrians of all nationalities without
unnecessary hardship the United States would offer no objection.
This inference is borne out by the subsequent nonaction of this
Government in regard to the cases of the various Syrian citizens of
the United States who were expelled from Haiti.
Furthermore, on August 27, 1908, the department sent to our minister
at Panama a memorandum from this office referring to the Panaman law
prohibiitng the immigration of Syrians, as follows:
Panama’s action in excluding Syrians would seem to be the
exercise of the undoubted right of a sovereign nation to
exclude foreigners classified as undesirable by the local
law. In view of this fact and of our own action against the
immigration of Chinese, it is submitted that we have no
ground for objecting against such action of Panama.
It would appear, therefore, that even though Wong Koon Hou be a
citizen of the United States, and as such entitled to enter the
United States, this gives the Government no basis upon which to
lodge a protest against his exclusion from Ecuador, provided that
such exclusion is a result of a general law reasonably administered.
It is therefore believed that Minister Fox’s course in declining to
take up this case with the Government of Ecuador should be
approved.
Department of
State,
Washington, March 5,
1909.
