EXECUTIVE MANSION, _April 6, 1886_.
_To the Senate and House of Representatives of the United States_:
I transmit herewith, for the consideration of Congress with a view to
appropriate legislation in the premises, a report of the Secretary of
State, with certain correspondence touching the treaty right of Chinese
subjects other than laborers "to go and come of their own free will and
accord,"
In my annual message of the 8th of December last I said:
In the application of the acts lately passed to execute the treaty of
1880, restrictive of the immigration of Chinese laborers into the United
States, individual cases of hardship have occurred beyond the power of
the Executive to remedy, and calling for judicial determination.
These cases of individual hardship are due to the ambiguous and
defective provisions of the acts of Congress approved respectively on
the 6th May, 1882, and 5th July, 1884. The hardship has in some cases
been remedied by the action of the courts. In other cases, however,
where the phraseology of the statutes has appeared to be conclusive
against any discretion on the part of the officers charged with the
execution of the law, Chinese persons expressly entitled to free
admission under the treaty have been refused a landing and sent back to
the country whence they came without being afforded any opportunity to
show in the courts or otherwise their right to the privilege of free
ingress and egress which it was the purpose of the treaty to secure.
In the language of one of the judicial determinations of the Supreme
Court of the United States to which I have referred--
The supposition should not be indulged that Congress, while professing
to faithfully execute the treaty stipulations and recognizing the fact
that they secure to a certain class the right to go from and come to
the United States, intended to make its protection depend upon the
performance of conditions which it was physically impossible to perform.
(112 U.S. Reports, p. 554, Chew Heong _vs._ United States.)
The act of July 5, 1884, imposes such an impossible condition in not
providing for the admission, under proper certificate, of Chinese
travelers of the exempted classes in the cases most likely to arise in
ordinary commercial intercourse.
The treaty provisions governing the case are as follows:
ART. I. * * * 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 limitations. * * *
ART. II. Chinese subjects, whether proceeding to the United States as
teachers, students, merchants, or from curiosity, together with their
body and household servants, * * * shall be allowed to go and come of
their own free will and accord, and shall be accorded all the rights,
privileges, immunities, and exemptions which are accorded to the
citizens and subjects of the most favored nation.
Section 6 of the amended Chinese immigration act of 1884 purports to
secure this treaty right to the exempted classes named by means of
prescribed certificates of their status, which certificates shall be the
_prima facie_ and the sole permissible evidence to establish a
right of entry into the United States. But it provides in terms for the
issuance of certificates in two cases only:
(_a_) Chinese subjects departing from a port of China; and
(_b_) Chinese persons (_i.e._, of the Chinese race) who may at
the time be subjects of some foreign government other than China, and
who may depart for the United States from the ports of such other
foreign government.
A statute is certainly most unusual which, purporting to execute the
provisions of a treaty with China in respect of Chinese subjects, enacts
strict formalities as regards the subjects of other governments than
that of China.
It is sufficient that I should call the earnest attention of Congress to
the circumstance that the statute makes no provision whatever for the
somewhat numerous class of Chinese persons who, retaining their Chinese
subjection in some countries other than China, desire to come from such
countries to the United States.
Chinese merchants have trading operations of magnitude throughout the
world. They do not become citizens or subjects of the country where they
may temporarily reside and trade; they continue to be subjects of China,
and to them the explicit exemption of the treaty applies. Yet if such a
Chinese subject, the head of a mercantile house at Hongkong or Yokohama
or Honolulu or Havana or Colon, desires to come from any of these places
to the United States, he is met with the requirement that he must
produce a certificate, in prescribed form and in the English tongue,
issued by the Chinese Government. If there be at the foreign place of
his residence no representative of the Chinese Government competent to
issue a certificate in the prescribed form, he can obtain none, and is
under the provisions of the present law unjustly debarred from entry
into the United States. His usual Chinese passport will not suffice,
for it is not in the form which the act prescribes shall be the sole
permissible evidence of his right to land. And he can obtain no such
certificate from the Government of his place of residence, because he
is not a subject or citizen thereof "at the time," or at any time.
There being, therefore, no statutory provision prescribing the terms
upon which Chinese persons resident in foreign countries but not
subjects or citizens of such countries may prove their status and
rights as members of the exempted classes in the absence of a Chinese
representative in such country, the Secretary of the Treasury, in whom
the execution of the act of July 5, 1884, was vested, undertook to
remedy the omission by directing the revenue officers to recognize
as lawful certificates those issued in favor of Chinese subjects by
the Chinese consular and diplomatic officers at the foreign port of
departure, when viséed by the United States representative thereat.
This appears to be a just application of the spirit of the law, although
enlarging its letter, and in adopting this rule he was controlled by the
authority of high judicial decision as to what evidence is necessary to
establish the fact that an individual Chinaman belongs to the exempted
class.
He, however, went beyond the spirit of the act and the judicial
decisions, by providing, in a circular dated January 14, 1885, for the
original issuance of such a certificate by the United States consular
officer at the port of departure, in the absence of a Chinese diplomatic
or consular representative thereat; for it is clear that the act of
Congress contemplated the intervention of the United States consul only
in a supervisory capacity, his function being to check the proceeding
and see that no abuse of the privilege followed. The power or duty of
original certification is wholly distinct from that supervisory
function. It either dispenses with the foreign certificate altogether,
leaving the consular visé to stand alone and sufficient, or else it
combines in one official act the distinct functions of certification and
verification of the fact certified.
The official character attaching to the consular certification
contemplated by the unamended circular of January 14, 1885, is to be
borne in mind. It is not merely _prima facie_ evidence of the
status of the bearer, such as the courts may admit in their discretion;
it was prescribed as an official attestation, on the strength of which
the customs officers at the port of entry were to admit the bearer
without further adjudication of his status unless question should arise
as to the truth of the certificate itself.
It became, therefore, necessary to amend the circular of January 14,
1885, and this was done on the 13th of June following, by striking out
the clause prescribing original certification of status by the United
States consuls. The effect of this amendment is to deprive any
certificate the United States consuls may issue of the value it
purported to possess as sole permissible evidence under the statute when
its issuance was prescribed by Treasury regulations. There is, however,
nothing to prevent consuls giving certificates of facts within their
knowledge to be received as evidence in the absence of statutory
authentication.
The complaint of the Chinese minister in his note of March 24, 1886,
is that the Chinese merchant Lay Sang, of the house of King Lee & Co.,
of San Francisco, having arrived at San Francisco from Hongkong and
exhibited a certificate of the United States consul at Hongkong as to
his status as a merchant, and consequently exempt under the treaty,
was refused permission to land and was sent back to Hongkong by the
steamer which brought him. While the certificate he bore was doubtless
insufficient under the present law, it is to be remembered that there is
at Hongkong no representative of the Government of China competent or
authorized to issue the certificate required by the statute. The intent
of Congress to legislate in execution of the treaty is thus defeated
by a prohibition directly contrary to the treaty, and conditions are
exacted which, in the words of the Supreme Court hereinbefore quoted,
"it was physically impossible to perform."
This anomalous feature of the act should be reformed as speedily as
possible, in order that the occurrence of such cases may be avoided and
the imputation removed which would otherwise rest upon the good faith of
the United States in the execution of their solemn treaty engagements.