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.