Mr. Windom to Mr.
Blaine.
Treasury Department,
Office of the
Secretary,
Washington, D.
C., November 26,
1889.
Sir: I have the honor to receive your letter of
the 15th instant, inclosing a copy of a note from the Chinese minister,
under date of the 5th instant, taking exception to certain regulations
prescribed in circular No. 100, series of 1889, from this Department, in
relation to the transit of Chinese laborers through the territory of the
United States.
A question having arisen at one of the ports of the United States
touching the right of Chinese laborers to enter the United States, in
transit from one foreign port to another, was referred by the collector
of that port to this Department, which, by law, regulation, and custom,
has a general supervision of such officers and the subjects committed to
their jurisdiction. Upon consideration of the question by the
Attorney-General, to whom it was presented, that officer gave his
opinion that the right of such transit was legal and proper.
In view of the provisions of the act of May 6, 1882, chapter 126; of July
5, 1884, chapter 220; of September 30, 1888, chapter 1015; and of
October 1, 1888, chapter 1064; and of the decision of the Supreme Court
of the United States in Chae Chan Ping vs. The
United States, 130 U. S. Reports, 581, that the act of October 1, 1888,
was not unconstitutional, but the lawful exercise of the sovereign power
of the legislative branch of the Government, it became necessary to
devise measures to prevent a violation or evasion of those statutes
under cover of the transit privilege-admitted to belong to Chinese
laborers seeking to pass through the territory of the United States. The
regulations to which the Chinese minister raises objection express the
best judgment of the Department as to the minimum requirements to be
enforced for the safe guarding of the Chinese exclusion acts, while
facilitating the transit privileges of Chinese laborers.
In view of the existing statutes, the Department could not, under the
guise of providing for the transit of Chinese laborers across American
territory, leave an open door for the admission, at their will, of such
of them as were disposed to establish themselves as additions to the
population of the country.
Upon further consideration it is proposed to amend the third paragraph of
the regulations of September 28, 1889, by adding thereto an alternative
provision that common carriers engaged in the business of conveying
Chinese laborers in transit may execute a general bond in lieu of the
special bond now required in the case of each transit laborer. A draught
of the regulation intended to effect this amelioration of the present
requirements is herewith submitted for your consideration. It would seem
that any carrier unwilling to furnish proof and guaranty of good faith
and reasonable diligence could not safely be intrusted with the
participation in the execution of the so-called Chinese exclusion acts,
nor be regarded as a proper instrumentality in the exercise of the
transit privilege. It will be observed that it is in the case of
laborers only that a regulated transit is prescribed by this Department.
It seems equally clear that to permit an unregulated transit of that
class of Chinese subjects would be equivalent to inviting a practical
nullification of the laws prohibiting the immigration or return of
persons of that class to the United States.
[Page 147]
It would be unnecessary to convey to the Department of State an assurance
that no purpose exists in or by the regulations described to interfere
with or impair any treaty rights of Chinese laborers in the matter of
such transit, or to withhold from them that comity due to the citizens
of a friendly power.
The sole object of the regulation was to guard against the obvious danger
of an infraction of those provisions of the law that prohibit the entry
of Chinese laborers into the United States for the purpose of residence,
while preserving to such laborers the right of transit through the
country.
I have, etc.,
[Inclosure No. 1.]
Mr. Chapman to
Mr. Windom.
Department of Justice,
Washington, July 23,
1889.
Sir: I have the honor to acknowledge the
receipt of your two communications upon the subject of the “transit
of Chinese laborers through the territory of the United States in
the course of their journey to or from other countries,” one under
date of July 19 instant, inclosing a letter of the Solicitor of the
Treasury, a circular of the Treasury Department, No. 5, dated
January 23, 1883, and a telegram from John W. Foster, counsel of the
Chinese legation; the other, under date of July 20, inclosing a
letter from the Acting Secretary of State, and a copy of a telegram
from the Chinese minister. You state that—
“Certain Chinese laborers have arrived at the port of New Orleans,
and are now awaiting the determination of the question as to whether
they have the right to pass through to San Francisco for the purpose
of embarking for China, and I will therefore thank you for an
expression of your opinion on this question at as early a day as
practicable.”
In reply I would say that the same question arose under the act of
May 6, 1882, (22 Stats, at Large, 58). It was submitted to this
Department, and the opinion of December 26. 1882 (reconsidering a
former opinion), was given. The conclusions reached in that opinion
I believe to be correct.
Moreover, it appears that from that time the Department of State,
uniformly, and the Treasury Department, generally, have recognized
and acted upon the construction given therein, at least down to the
passage of the act of October 1, 1888.
Manifestly the act of July 5, 1884 (23 Stats, at Large, 115), did not
render the opinion inapplicable to the question submitted.
Nor does the act of October 1, 1888, known as “the Scott Exclusion
Act” (25 Stats, at Large, 504), affect its application. That act was
directed to “Chinese laborers” who had been or might be residents
here, and related to their departure and return.
I have been able to find no other legislation bearing materially upon
the question. But it is possible that some of the “collectors of
customs” to whom you refer may have been influenced by the stringent
provisions of the act of September 13, 1888 (25 Stats, at Large,
476). The restrictive provisions of that act, however, by its very
terms do not take effect till “the date of the exchange of
ratifications, of the pending treaty,” which date has not yet
arrived.
I therefore adopt the carefully considered opinion of this
Department, given under date of December 26, 1882, as expressing my
views upon the question you submit without additional argument.
I return the inclosures as requested.
Very respectfully,
O. W. Chapman,
Solicitor
General.
Approved.
W. H. H. Miller,
Attorney-General.
The Secretary of the Treasury.
[Page 148]
[Inclosure No. 2.
Circular.]
transit of chinese laborers through the
united states.
Treasury Department,
Office of the
Secretary,
Washington, D.
C., September 28,
1889.
[1889. Department No. 100, Division of Customs.]
To collectors and other officers
of the customs:
In view of the opinion of the Attorney-General, promulgated in S.
9519, of July 25, 1889, the following regulations for the transit of
Chinese laborers through the territory of the United States are
hereby prescribed:
1. Any Chinese laborer claiming to be in transit through the
territory of the United States in the course of a journey from and
to other countries, shall be required to produce to the collector of
customs at the first port of arrival a through ticket across the
whole territory of the United States intended to be traversed, and
such other proof as he may be able to adduce, to satisfy the
collector of the fact that a bona fide transit only is intended; and
such ticket and other evidence presented must be so stamped, or
marked, and dated by the customs officer as to prevent their use for
the second time.
2. Descriptive lists of all such Chinese laborers will be prepared in
duplicate in the following form:
Descriptive list of Chinese
laborer in transit through the United States.
| Name. |
Age. |
Occupation. |
Last place of residence. |
Height. |
Complexion. |
Color of eyes. |
Physical marks. |
|
|
|
|
Ft. In. |
|
|
|
| [seal.] |
— —
Collector of
Customs. |
Port of ——, —— (date.)
The collector shall be satisfied of the correctness of the
descriptive list before affixing his signature and seal.
One of the copies will be retained on the files of the office of the
collector of customs at the port of arrival and one forwarded by
mail to the collector at the port of exit.
3. The collector of customs at the first port of arrival shall take a
bond in the penal sum of not less than $200 for each Chinese
laborer, conditioned for his transit and actual departure from the
United States within a reasonable time, not exceeding twenty days
from the date of arrival at such port. The bond may be given either
by the transportation company issuing the through ticket, or by some
responsible person on behalf of the laborer, and will be canceled on
receipt from the collector of customs at the port of exit of a
certificate showing that the person specified in the descriptive
list transmitted to such port has actually departed therefrom, and
stating the name of the vessel and date of departure.
Previous regulations on this subject are hereby rescinded.
William Windom,
Secretary.
[Inclosure No. 3.]
To collectors and other officers
of the customs:
It is announced that paragraph 3 of Department’s Circular No. 100,
dated September 28, 1889, relating to the transit of Chinese
laborers through the United States, is hereby amended by the
addition thereto of the following provisions:
Any transportation company engaged in the transit of Chinese laborers
through the territory of the United States may execute such a
general bond or undertaking to
[Page 149]
the United States in a penal sum and with such
conditions as may be fixed by the Secretary of the Treasury; and
such company and its transit Chinese laborers shall thereafter be
exempted from the forgoing requirements of this paragraph.
