Papers Relating to the Foreign Relations of the United States, 1894, With the Annual Message of the President, Transmitted to Congress, December 3, 1894

Mr. Yang Yü to Mr. Gresham.

Chinese Legation,
Washington, April 24, 1894. (Received April 24.)

Sir: I have the honor to request your attention to the opinion of the Attorney-General addressed to the Secretary of the Treasury, dated 6th April, 1894, upon the question of the definition of “merchant,” contained in the second section of an act approved November 3, 1893, to amend an act entitled “An act to prohibit the coming of Chinese persons into the United States,” approved May 5, 1892, and also to the orders issued pursuant thereto by the Secretary of the Treasury to collectors and other officers of the customs, dated the 10th and 19th days of April, respectively. In the opinion the Attorney-General concludes “that a Chinese person does not bring himself within the statutory definition of merchant unless he conducts his business either in his own name or in a firm name of which his own is a part.” By the terms of the order of the Secretary of the Treasury of April 10, 1894, the customs officers are instructed to follow this opinion as a guide in the enforcement of the Chinese exclusion laws. Subsequently, however, to wit, on the 19th day of April, the Secretary of the Treasury ruled that Chinese merchants domiciled in the United States, and who departed therefrom prior to November 3 last, may be permitted to land upon submission to the collector of customs at the port of first arrival of evidence sufficient to satisfy him of their identity as such returning merchants.

If this ruling against the return of Chinese merchants to the United States shall be enforced, great injustice will result to many of those persons who are bona fide entitled to reenter the United States and continue the pursuit of their legitimate business, and it may be remarked that, if a similar ruling should be enforced against American merchants in China, a like injustice would be inflicted upon such merchants and their business in that country. I shall not readily believe, therefore, that it is the intention of the U. S. Government, by following the letter of the law, instead of its spirit, to thus destroy, to any extent, the business of this class of Chinese persons, and also to visit upon them at the same time this great personal injustice.

The Chinese merchants in the United States have, for many years, carried on their partnerships in a manner peculiar to their own notions and customs. These partnerships and business relations existed throughout the United States on November 3, 1893. It will scarcely be contended, therefore, that it was the intention of the law in defining “merchant” to destroy, in whole or in part, such business relations of the Chinese merchants by abridging their right to go to China and to return to the United States.

It is a well-known fact that the Chinese mercantile establishments in the United States consist of many members, who, under some fictitious name, carry on their business regardless of the names of the members. The names of the members of these firms can, no doubt, in each instance be readily ascertained and furnished, but not in all probability within the strict terms of the opinion of the Attorney-General.

It is the object of this note, therefore, to bring this important question to your careful consideration for the purpose of adopting if possible some method of protecting the rights of Chinese merchants to return to the United States and pursue their mercantile business, and I wish it distinctly understood that I disclaim all desire to protect any Chinese persons of any class who may attempt by fraud to enter into the United States in violation of law.

In conclusion I will suggest that the names of all Chinese merchants, who are members of firms in the United States, and who are at present in the United States, or absent therefrom and entitled to return thereto, could easily be ascertained through the Chinese consular officers in the United States and furnished to your Government, if by this method the rights of such Chinese merchants could be better protected from the great wrong that is now about to be done toward them.

Hoping that some course may be adopted that will prove satisfactory upon this subject,

Accept, etc.,

Yang Yü.

[Inclosure—Circular.]

Admission of Chinese claiming to be merchants.

Treasury Department,
Office of the Secretary,
Washington, April 10, 1894.

To Collectors and other Officers of the Customs:

A question having arisen as to the right of persons claiming to be members of Chinese mercantile firms, but whose names do not appear in the firm name, to leave the United States and return thereto as merchants, an opinion was requested from the honorable the Attorney-General as to such right, in view of the provision in section 2 of the act approved November 3, 1893, amending the act approved May 5, 1892, entitled “An act to prohibit the coining of Chinese persons into the United States,” viz:

The term “merchant” as employed herein, and in the acts of which this is amendatory, shall have the following meaning and none other: a merchant is a person engaged in buying and selling merchandise at a fixed place of business, which business is conducted in his name, etc.

In reply, under date of the 6th instant, the opinion was rendered, copy of which is hereunto appended for the information and guidance of all officers of this Department charged with the enforcement of the Chinese exclusion laws.

C. S. Hamlin,
Assistant Secretary.

The following is a copy of the opinion above referred to:

Department of Justice,
Washington, D. C., April 6, 1894.

Sir: I have the honor to acknowledge yours of the 3d instant, in which my opinion is requested upon the question whether a member of a Chinese copartnership whose name does not form a part of the firm name under which the copartnership business is carried on can leave the United States and return thereto as a merchant under section 2 of the act approved November 3, 1893, amending the act approved May 5, 1892, entitled “An act to prohibit the coming of Chinese persons into the United States.”

Section 2 of the act referred to defines a merchant in the following language:

“A merchant is a person engaged in buying and selling merchandise at a fixed place of business, which business is conducted in his name, and who, during the time he claims to be engaged as a merchant, does not engage in the performance of any manual labor, except such as is necessary in the conduct of his business as such merchant.”

This requirement that the merchant must conduct the business in his own name can have but one purpose, to wit, that he who is a merchant in fact shall also be known to be such by the parties with whom he deals, and by the public generally. That purpose could readily be defeated if it were permissable to conceal his identity by trading under an assumed name or under the disguise of a “Co.”

I am, therefore, of the opinion that a Chinese person does not bring himself within the statutory definition of merchant unless he conducts his business either in his own name or in a firm name of which his own is a part.

Respectfully, yours,

Richard Olney,
Attorney-General.

Hon. Secretary of the Treasury.

Treasury Department,
Office of the Secretary,
Washington, D. C., April 19, 1894.

Collector of Customs, Astoria, Oreg.:

Chinese merchants domiciled in the United States, and who departed prior to November 3 last, when act amending act approved May 5, 1892, entitled “An act to prohibit the coming of Chinese persons into the United States” was approved, may be permitted to land upon evidence sufficient to satisfy you of their identity as returning merchants. Those who left the United States since November last, and whose names do not appear in firm name, must be excluded under opinion of Attorney-General of 6th instant.

J. G. Carlisle,
Secretary.

Similar telegram sent to collectors of customs at the following ports: Burlington, Vt., Portland, Oreg.; Port Townsend, Wash.; Suspension Bridge, N. Y.; San Francisco, Cal.