Page images
PDF
EPUB

EXCLUSION OF CHINESE-REFUSAL OF TREASURY DEPART

MENT TO MODIFY CERTAIN REGULATIONS.

Mr. Wu to Mr. Hay.

*

*

a full

*

*

No. 248.]

CHINESE LEGATION,

Washington, June 14, 1902. Sir: My attention has been called to a circular, No. 52, issued by the Department of the Treasury May 10 last, in which it is stated that under Article II of the treaty between China and the United States of 1894 Chinese laborers, seeking admission into the United States after a temporary absence, must at that time prove their right to return. It then proceeds to modify the character of the return certificate which has heretofore been given to the resident laborer on his temporary visit abroad, and requires him to forward from China or the place of his sojourn, ninety days in advance, a notice to the collector of customs of his intention to return and the grounds upon which he claims the right of admission to the United States.

The effect and evident purpose of this circular is to change the practice heretofore existing as to the time and method of determining the right of a Chinese laborer lawfully in the United States to go abroad and return, a privilege which is expressly guaranteed to him by the article of the treaty cited. I respectfully submit that the circular is in violation of the spirit of the treaty and in direct contravention of the law of Congress referred to in paragraph 2 of the circular.

It will be seen that Article II of the treaty requires that the laborer intending to go abroad shallbefore leaving the United States, deposit as a condition of his return description in writing * (of the grounds upon which he claims the right to return), and shall be furnished by said collector with such certificate of his right to return under this treaty as the laws of the United States may prescribe; and should the written description aforesaid be proved to be false the right to return

* shall be forfeited. It is thus clear that the treaty requires that the evidence of the right of the laborer to return shall be submitted to the collector, and the sufficiency of the same be passed upon before he goes abroad and before the return certificate is issued.

But if any doubt could exist as to the intent of the treaty the duty of the customs officials is made clear by the law of Congress of September 13, 1888. Section 7 of that act requires that a Chinese laborer desiring to go abroad and returnshall apply to the collector of customs of the district from which he wishes to depart at least a month prior to the time of his departure, and shall make oath, etc., and shall furnish to said collector such proof of the facts entitling him to return as shall be required by the rules, etc.

And if the collector, after hearing the proofs and investigating all the circumstances of the case, shall decide to issue a certificate, he shall * * sign and give to the person applying a certificate * which shall be the sole evidence given to such person of his right to return.

This is a precise and positive provision that “the written description" contemplated in the treaty, setting forth the grounds upon which the laborer claims the right of readmission (see paragraph 3 of circular) is to be given to the collector and its sufficiency is to be passed upon before the certificate is issued, and before the laborer leaves the United States. This certificate is to be held as final. Other sections of the

*

*

*

law provide for the identification of the person with the certificate, and punishment for its forgery; but no provision is contemplated for a reexamination of “the grounds upon which he (the laborer) claims the right of admission " after his departure or before his return.

The fact that the law requires the laborer to submit his evidence to the collector thirty days before his intended departure makes it plain that it was the intent of the law that the investigation should be such an investigation as would determine the right of the laborer to return. I do not mean to say that fraud discovered after the certificate was issued might not invalidate it, but the law does contemplate that this certificate shall be, not “prima facie evidence” (see paragraph 1 of the circular), but "the sole evidence" of the right of the laborer to return.

This view of the treaty and the law is not only technically correct, but it is in accordance with the reasonableness and justice of the situation. It is proper that the Chinese laborer lawfully in the United States, wishing to take advantage of the treaty privilege of a temporary visit to his native land or elsewhere, should know before he leaves the United States whether he has the right to return, and he is entitled to have this fact officially determined before he takes his departure on his long and expensive journey. It seems like cruel irony to be told (see paragraph 3 of the circular) that, for his own convenience and benefit, the laborer is to be allowed to go across the great ocean, and, after he has reached his destination, he is to send to the collector in the United States the evidence or ground upon which he claims the right to return, and have the investigation take place while he is 10,000 miles away, with no opportunity to refute false charges or the machinations of his enemies.

I especially call attention to the fact that the debate in Congress and its recent action on the exclusion laws was in open disapproval of the action of the Immigration Bureau in seeking to add conditions to the treaty and the laws of Congress which were not warranted by them.

In view, therefore, of the facts and views herein set forth, I have to request that circular No. 52, Bureau of Immigration, May 10, 1902, be submitted to the Attorney-General for an opinion as to whether it is warranted by the treaty and the laws of Congress. Accept, etc.,

WU TING-FANG.

[Inclosure.)
Enforcement Chinese-exclusion law.
[1902. Department Circular No. 52. Bureau of Immigration.]
TREASURY DEPARTMENT, OFFICE OF THE SECRETARY,

Washington, D. C., May 10, 1902. To Collectors of Customs :

It has been determined in an opinion by the Solicitor of the Treasury (T. D. 23660) that, under the provisions of Article II of the convention between the Government of the United States and the Empire of China, proclaimed December 8, 1894, registered Chinese laborers seeking admission to the United States after temporary absence therefrom must prove that some one of the conditions mentioned in said Article II exists at the time of application for such readmission. This constitutes a condition precedent to reentry of such persons additional to the return certificate prescribed in section 7 of the act approved September 13, 1888.

1. You are therefore directed to issue to duly registered Chinese laborers applying therefor, return certificates upon prima facie evidence establishing that they have, respectively, some one of the grounds recited in said section of the act referred to above to sustain their claim of right to such return certificates.

2. You are informed, however, that the return certificate is issued in accordance with the requirements of section 7 of the act approved September 13, 1888, but it does not relieve the person to whom issued of the necessity of proving to the satisfaction of the appropriate officers, upon his return to the port of departure, that some one of the conditions recited in Article II of the convention between the United States and China, promulgated December 8, 1894, exists at the time of such return.

3. Every registered Chinese laborer to whom a return certificate has been issued should be informed at the time of such issuance that in order to avoid, as far as possible, the risk of being refused admission and being returned to China after the long voyage therefrom, he should, at least ninety days in advance thereof, notify the collector of customs of the port from which he departed from the United States of his intention to return, giving in such notice his name and address, the number of his return certificate, and the ground upon which he claims the right of admission.

4. Upon the receipt of any such notice, the collector of customs should immediately make a thorough investigation of the claim made therein, and if such investigation fails to establish the validity of such claim, the person making it should be notified at his address that he will not be permitted to reenter the United States.

5. Upon the arrival of any registered Chinese laborer at any port of the United States and his exhibition of his return certificate to the appropriate officer, the collector of customs of such port should require such Chinese to establish satisfactorily, as a condition precedent to his admission to the United States, that he has, at the time of such arrival, a lawful wife, child, or parent in the United States, or property therein of the value of $1,000 or debts of like amount due him and pending settlement. If the evidence establishing the eligibility of the applicant to enter has previously been secured and is not controverted, then he shall be admitted without delay, but otherwise he shall be refused a landing until he establishes his right thereto.

0. L. SPAULDING, Acting Secretary.

Mr. Hill to Mr. Wu.

No. 235.]

DEPARTMENT OF STATE,

Washington, July 31, 1902. Sir: Referring to your note, No. 248, of the 14th ultimo, requesting that Circular No. 52, Bureau of Immigration, issued by the Treasury Department May 10, 1902, and relating to the enforcement of the Chinese-exclusion law, be submitted to the Attorney-General for an opinion as to whether the circular is warranted by the treaty · between the United States and China and the laws of the United States, I have the honor to inclose herewith for your information a copy of a letter from the Acting Attorney-General, in which he expresses the opinion that, as matter of law, the circular in question is warranted by the treaty with China and the existing laws of the United States. Accept, etc.,

DAVID J. HILL,

Acting Secretary.

[Inclosure.]

Mr. Hoyt to Mr. Hay.

DEPARTMENT OF JUSTICE,

Washington, July 26, 1902. Sir: Your letter of June 24, inclosing a note from the Chinese minister dated June 14, presents for my opinion the question whether Circular No. 52, Bureau of Immigration, issued by the Treasury Department May 10, 1902, and relating to the enforcement of the Chinese-exclusion law, is warranted by the treaty with China and the laws of the United States.

The circular provides that registered Chinese laborers seeking admission to the United States after temporary absence, under Article II of the treaty of 1894 between the United States and China, must prove that some one of the conditions mentioned in Article II exists at the time of application for readmission. The circular states that such proof “constitutes a condition precedent to reentry of such persons additional to the return certificate prescribed in section 7 of the act approved September 13, 1888." The following rules and conditions are prescribed: That return certificates may be issued to duly registered Chinese laborers upon prima facie evidence that they possess some one of the grounds recited in the act of 1888 to sustain their claim of right to return; that a return certificate does not relieve the holder of the necessity of proving to the satisfaction of the appropriate officers upon return to the port of departure that some one of the conditions of Article II exists at the time of return; that every Chinese laborer to whom a return certificate has been issued should be informed that, in order to avoid the risk of being refused readmission, he should, ninety days in advance of his return, notify the collector of customs at the proper port of the intention to return, giving the facts regarding his personal identity and the grounds upon which he claims the right to reenter.

The remaining paragraphs of the circular provide that the collector shall, upon receipt of such notice, investigate the claim, and if its validity is not established, shall notify the person making it that he will not be permitted to reenter this country; and that upon the arrival of a returning laborer and the exhibition of his return certificate the collector shall require the applicant to establish satisfactorily that he has at the time of arrival a lawful wife, child, or parent in the United States, or property therein of the value of $1,000, or debts of like amount due him and pending settlement. Provision is made for entry without delay if evidence of the applicant's eligibility has previously been secured and is not controverted, but otherwise a landing shall be refused until the applicant's right is established.

The gist of the representations on behalf of Chinese persons is that the existing law and practice contemplate the possession of a return certificate as conclusive evidence of the right; that there is no warrant for the position of the circular that the conditions of allowance of reentry must exist at the time of return as well as at the time of departure when the certificate is obtained. The statement of this proposition is almost sufficient in itself to condemn it. Accompanying it is some concession that fraud discovered after the certificate was issued might invalidate it. But the claim is made that the certificate is not prima facie evidence, but the sole evidence of the right of the laborer to return. The argument necessarily means that, provided a registered laborer possessed the proper qualifications to entitle him to return at the time of leaving this country, although as soon as he had left, by fortuitous occurrence, or design, short of fraud, all of those qualifications were withdrawn by the departure of his family from this country and the collection and remittance of his property or debts to China, yet the certificate of the necessary facts which previously existed would be a sufficient charter for his right to reenter.

The act of 1888 in its sixth section states the same basis for the right of return as the treaty of 1894, and there is nothing in the seventh section of that act providing for return certificates which makes the issue of the certificates the final determination of the right, or which is inconsistent with the view that the facts constituting the foundation of the right must exist when the applicant actually returns to this country as well as when he applies for the certificate.

Article I of the treaty of 1894 prohibits the coming of Chinese laborers to the United States. The first sentence of Article II is as follows:

“The preceding article shall not apply to the return to the United States of any registered Chinese laborer who has a lawful wife, child, or parent in the United States, or property therein of the value of $1,000, or debts of like amount due him and pending settlement.”

The remainder of Article II specifies the conditions upon which the Chinaman must obtain a certificate and exercise the right of return. The language quoted makes it very evident that the existence of the crucial facts relates to the time of return. They must exist also at the time of departure in order to enable the Chinaman to obtain a certificate; but manifestly there is no meaning or purpose in the allowance granted except as giving an actual and existing reason for a Chinaman's reentry into the country. The law does not provide that the prohibition shall not apply to the return of a laborer who had, but who has, a lawful wife, child, etc.

Consideration of the essential character of the exception granted and of the reasons for it enables us to say that the requirement of application for a return certificate a month prior to departure (sec. 7, act of 1888, supra), to enable the collector to

investigate, constitutes no reason for holding that no other examination was ever intended to be made. The right is carefully guarded against abuse. Before the apparent title to it is conferred due investigation is made, and manifestly the right should be shown by satisfactory proof to be still possessed by the applicant when he actually arrives here on his return voyage.

Paragraph III of the circular, suggesting rather than requiring that a returning laborer should notify the collector from China in advance of his intention to return, is plainly for the convenience of the Chinaman and to save him from loss and disappointment. This provision was dictated by consideration for the Chinese, and the suggestion is not just that the benefit and convenience to them is doubtful; that the rule really subjects Chinamen to an adverse investigation in their absence, with no opportunity to refute false charges or the machinations of enemies. In any bona fide case adverse influences, if, indeed, such should exist, would be powerless to prevent the establishment before the appropriate Government officers of such patent fact as the necessary family relations or property ownership.

In view of all the foregoing considerations, I have the honor to advise you that in my opinion, as matter of law, the circular in question is warranted by the treaty with China and existing laws of the United States. Very respectfully,

HENRY M. Hoyt, Acting Attorney-General.

Mr. Wu to Mr. Adee.

No. 258.]

CHINESE LEGATION,

Washington, September 11, 1902. Sir: I have to thank you for your note of the 31st July last, with which you kindly inclosed an opinion from the Acting AttorneyGeneral on Circular No. 52 of the Bureau of Immigration, Treasury Department.

I gave at some length, in my note to your Department of June 14 last, my view of the unreasonableness of the circular in question, and do not see that it will be productive of any good end to elaborate further my objection to the same. The opinion of the Acting AttorneyGeneral is another confirmation of a declaration in an opinion given by his Department on the 11th February last that in the enforcement of the Chinese-exclusion laws the ordinary principles of law and equity can not be followed, but that they must be subjected to a construction peculiar, severe, and strict. Accept, etc.,

Wu TING-FANG.

RECEPTION OF REAR-ADMIRAL FREDERICK RODGERS, U. S.

NAVY, BY THE EMPEROR AND EMPRESS DOWAGER.

Mr. Conger to Mr. Hay. No. 1025.]

LEGATION OF THE UNITED STATES,

Peking, June 25, 1902. Sir: I have the honor to report that Admiral Frederick Rodgers, commanding the Asiatic Squadron, has been, with his staff, paying a visit to Peking, and that among other courtesies shown him was an audience at the Imperial palace on yesterday, at which he was received with great pomp and ceremony by both the Emperor and Empress Dowager. All the members of the foreign office were present, together with several hundred other officials and attendants.

The Admiral was accompanied by three members of his staff, and I had with me Captain Reeves, military attaché, Dr. Barchet, acting Chinese secretary, and Lieutenant Welborn and Dr. Lyster, of the legation guard. "Everything passed off pleasantly, and no detail was

« PreviousContinue »