In view of this opinion, certificates issued to Chinese subjects of the
exempt class by consuls of China will not hereafter be accepted as
evidence of the right of the holder to enter this country, and the
consular officers of the United States have been directed to discontinue
the practice of visaing certificates so issued.
Chinese subjects of the exempt class coming into the United States from
China will be required to produce certificates from the Government
[Page 188]
of China, and those coming
from foreign countries in which they are residents must produce, under
the treaty of 1894, the certificates of the Government of such
countries.
[Inclosure.]
Acting
Attorney-General to Secretary of
the Treasury.
Department of Justice,
Washington, D. C., August 31, 1898.
Sir: I have the honor to acknowledge the
receipt of your communication of July 23, 1898, in which you invite
my attention to the opinion of my predecessor, dated January 8, 1894
(20 Op., 693), holding that certificates issued by consular officers
of China in a foreign country are certificates contemplated by
section 6 of the Chinese exclusion act of July 5, 1884; and to the
opinion of my predecessor, dated May 20, 1896 (21 Op., 347), holding
that under the treaty with China of March 17, 1894, the certificates
in question must issue from the proper authorities of the foreign
government where Chinese subjects of the privileged classes,
applicants for admission to the United States, last resided; and in
which, finally, in view of the foregoing, you request my opinion as
to the authority of consular officers of China in foreign countries
to issue the certificates prescribed in section 6 of the said act of
1884.
It is fairly to be assumed that the Chinese persons, whose case we
are to consider in this review, are those of the classes privileged
to be admitted into the United States, who are subjects of China,
resident in some other foreign country. The treaty referred to
regards, in this connection, only “Chinese subjects” in terms and by
necessary intendment; and the opinion last cited expressly relates
to Chinese subjects alone. The act of 1884 embraces Chinese persons
who are subjects of other foreign governments, as well as those who
are Chinese subjects, but the opinion first cited, construing
section 6 of this act, necessarily has in view only the latter
class, since it may hardly be doubted that under this section it was
and is requisite that Chinese persons entitled to admission to the
United States, being subjects of some other foreign government than
that of China, must produce a certificate issued by the proper
officials of such government and not by those of China. At all
events, the question as it affects Chinese persons, other than
Chinese subjects, is beyond the scope of our inquiry, and we may
therefore dismiss that branch of the case. In any view it is
reasonable to conclude that if the determination reached by me is
that consular officers of China in a foreign country are not
authorized to issue to Chinese subjects resident therein the
certificates prescribed by the act of 1884, a fortiori such consular
officers are not authorized to issue these certificates to Chinese
persons who are the subjects of such other foreign country.
Section 6 of the act of July 5, 1884 (23 Stats., 115), provides
that:
“* * * every Chinese person other than a laborer, who may be entitled
by said treaty (the treaty of 1880) or this act to come within the
United States, and who shall be about to come to the United States,
shall obtain the permission of and be identified as so entitled by
the Chinese Government, or of such other foreign government of which
at the time such Chinese person shall be a subject, in each case to
be evidenced by a certificate issued by such government.” * * *
The opinion first cited herein construing the language of this
section that the “permission” and “identification” of the Chinese
person shall be “evidenced by a certificate issued by such
government,” reaches the conclusion that certificates accurately
conforming to the requirements of section 6 and issued by consular
officers of China in a foreign country, duly empowered by the
Chinese Government, are valid. The words of the act “such
government” point to the “Chinese Government or * * * other foreign
government of which at the time such Chinese person shall be a
subject.” This language is to be taken distributively rather than as
allowing an alternative source for the certificate, either to
Chinese subjects or to persons of Chinese descent who are not
Chinese subjects, and hence the conclusion of the opinion in
question quite clearly implies, as before indicated, an application
only to subjects of Chinese resident in another foreign country.
The situation was changed by Article III of the Convention of 1894
between the United States and China (28 Stats., 1210), which
reads:
“* * * To entitle such Chinese subjects as above described to
admission into the United States, they may produce a certificate
from their Government or the government
[Page 189]
where they last resided vised by the
diplomatic or consular representative of the United States in the
country or port whence they depart.” * * *
My predecessor was of the opinion (21 Op., 347) that the provisions
of this article of the treaty of 1894 are self-executing and are a
part of the supreme law of the land, and he holds in effect,
therefore, that while prior to the treaty of 1884 a certificate from
the foreign authorities as to privileged Chinese subjects resident
within a foreign jurisdiction would have been insufficient, and a
certificate from the Chinese Government or its accredited consular
officials would be necessary, the treaty being subsequent to the act
of 1884, has modified the requirements thereof, so that the
certificate must now be issued in such cases by the foreign
government and not by officials of China. This opinion evidently
regards the treaty as mandatory on this point, and suggests no
alternative under which such applicant for admission might properly
produce either the certificate of consular officials of China or the
certificate of the foreign government. I concur in this reasoning
and conclusion. There is no fundamental inconsistency or repugnancy
between the act and the treaty, nor between the opinions of my
predecessors considering them respectively, nor has any radical
change in procedure resulted from the partial modification of the
act by the treaty. The certificate is the same in its contents and
incidents, but the source from which it issues in the case which we
are considering has been transferred from the Chinese Government to
the foreign government of residence. The whole scope of the question
may be summarized as follows:
Chinese subjects of the permitted classes coming into the United
States from China must produce the certificate of the Government of
China, and coming from other foreign countries in which they are
residents, must now produce, under the treaty of 1894, the
certificate of the Government of such countries, and not, under the
act of 1884 (as considered in 20 Op., 693), the certificate of
consular or other proper officials of China. It lies beyond our
inquiry, as I have intimated, to determine whether, granting that
under the act of 1884 the certificate of a Chinese person being the
subject of another foreign Government must be issued by that
Government when he comes from its jurisdiction into the United
States, it should be issued by that Government or by the Government
of residence when he resides elsewhere and proceeds therefrom to the
United States. To such Chinese persons the treaty of 1894 does not
legally extend, and it has not been determined, so far as I am
aware, whether as to them the test of relation as subject or
citizens indicated by the act of 1884 or the test of residence by an
equitable application (so to speak) of the principle of the treaty
is to be invoked. It may be that this latter question is not of
practicable moment at present, or that you have already, in the
regulations and practice of your Department, disposed of it.
I therefore respond to your request by stating that in my opinion
there is no authority to be derived from our existing laws granting
to consular officers of China in a foreign country the right to
issue the certificates prescribed by section 6 of the act of July 5,
1884.
Very respectfully,
Jas. E. Boyd,
Acting
Attorney-General.
