No. 87.
Mr. Frelinghuysen to Mr. Cheng Tsao
Ju.
Washington, January 6, 1883.
Sir: On the 28th of June, 1882, the chargé d’affaires ad interim of your legation, Mr. Tsu Chan Pang, wrote to me touching the question arising under the act of May 6, 1882, relative to the transit across the territory of the United States of Chinese laborers proceeding to or returning from Cuba and other foreign countries.
I am happy to inform you that this Government has reached the conclusion that the transit through the United States of Chinese subjects, proceeding to or from a third country, is permissible under the act in question, with certain precautions against abuses.
An opinion which I have received from the Attorney-General sets forth the grounds on which this conclusion is reached, which, briefly recapitulated, are as follows.
The preamble of the act itself reads:
Whereas, in the opinion of the Government of the United States the coming of Chinese laborers to this country endangers the good order of certain localities within the territory thereof; [and it is thereupon enacted that] the coming of Chinese laborers to the United States be * * * suspended; and during such suspension it shall not be lawful for any Chinese laborer to come, or having so come* * * to remain within the United States.
The act is based upon the treaty of November 17, 1880, the provisions whereof it is designated to execute. In that treaty it is premised that “a modification of existing treaties” has become necessary in consequence of the increasing immigration of Chinese laborers and the embarrassments caused by such immigration; and thereupon the Government of China agrees that whenever in the opinion of this Government injurious effects are threatened or caused by “the coming of Chinese laborers to the United States or their residence therein,” such coming or residence may be regulated, limited, or suspended, but may not be absolutely prohibited. The treaty adds:
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 iucluded in the limitations. Legislation taken in regard to Chinese laborers will be of such a character only as is necessary to enforce the regulation, limitation, or suspension of immigration, and immigrants shall not be subject to personal maltreatment or abuse.
In the view of the Attorney-General, the act of May 6, 1880, being intended to carry into effect the stipulations of the treaty, is to be construed in the light thereof, and has reference only to the Chinese who come here to stay as laborers. It is only with immigrants and with those who come as laborers that the treaty and the statute deal. Looking, therefore, at the mischief and the remedy, and to the treaty and act taken together, this Government, adopting the conclusion of the Attorney-General, does “not think that a Chinese laborer coming to this country merely to pass through it can be considered as within the prohibition of the law, he being neither an immigrant nor a laborer coming here as laborer.”
With regard to the necessity of Chinese laborers in transit being [Page 213] provided with evidence that they are not Chinese comings here as immigrants or as laborers, the Attorney-General says;
As the prohibition of the act applies to Chinese laborers coming into the country to stay as laborers, and as the regulations touching certificates of identification prescribed by the fourth and sixth sections are ancillary to that end, and intended to prevent frauds upon the act, and therefore applicable only to Chinese coining here for permanent or temporary residence, I am of opinion that Chinese passing through this country to other countries are not required, before crossing our borders, to produce the specified certificates of identification, provided they competently prove in some other manner their status as mere transient passengers; of course the certificate would dispense with other proof. The character of such proof may very properly be regulated by the Secretary of the Treasury.
I have brought the matter, in this shape, to the attention of the Secretary of the Treasury, and requested that he will frame such regulations as may be necessary to permit the transit of Chinese laborers. As soon as the action of my colleague shall be made known to me, I will communicate it to you.
Accept, &c.,