The Acting Secretary of State to the Chinese Minister.
Washington, April 13, 1906.
Sir: I have the honor to acknowledge the receipt of your personal note of the 28th ultimo,a stating that the Chinese consul-general at Johannesburg is the sole representative of the Chinese Government in the whole continent of Africa, and suggesting that the certificate given by him to the Chinese student, Dr. F. C. Yen, be accepted as sufficient to enable the latter to remain in the United States, if it be in other respects regular.
A copy of your note was sent to the Secretary of Commerce and Labor on the 2d instant for his consideration. In his letter in reply, dated the 6th instant, the Secretary of Commerce and Labor says:
This department has never been advised that the Chinese Government has authorized its consul-general at Johannesburg to issue to Chinese citizens of [Page 269] the exempt classes the certificate prescribed by section 6 of the act of Congress approved July 5, 1884. The minister, in his note above mentioned, does not state that such authority has been granted the said consul, but merely expresses the opinion that “I (the minister) should suppose that the authority of the diplomatic and consular officers of the Imperial Government to issue the certificate prescribed by the said act would not be questioned.”
The Chinese minister thus raises the general question of the acceptance by officers of the Immigration Service of this department of “Section 6 certificates “issued by diplomatic or consular representatives of China in the various foreign countries from which Chinese of the exempt classes may attempt at any time to enter the United States, a question which has been raised by this department on several occasions since the expiration, on December 8, 1904, by China’s denunciation, of the treaty of 1894.
* * * * * * *
The Empire of China has not designated any officials located in countries other than China to issue the said certificate, a condition which must necessarily result, so long as it continues, in much embarrassment and annoyance to the officers of this Government charged with the development of the Chinese-exclusion laws.
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The only officials which the Chinese Government has ever designated to issue the said certificates are named in a dispatch dated April 12, 1904, No. 1570 (from the American minister to China), received by this department under cover of Department of State letter of June 6, 1904. That list consists of the names of 16 persons, all of whom are located at points within the Empire of China. The Chinese minister is therefore in error when he supposes that the officials of the United States Government could accept without question section 6 certificates issued by diplomatic or consular officers of China. Section 6 of the act approved July 5, 1884, provides as follows:
“That in order to the faithful execution of the provisions of this act, every Chinese person, other than a laborer, who may be entitled by said treaty or this act to come within 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, which certificate shall be in the English language, and shall show such permission, with the name of the permitted person in his or her proper signature, and which certificate shall state the individual, family, and tribal name in full, title or official rank, if any; the age, height, and all physical peculiarities, former and present occupation or profession, when and where and how long pursued, and the place of residence of the person to whom the certificate is issued, and that such person is entitled by this act to come within the United States.
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“Such certificate, viséed as aforesaid, shall be prima facie evidence of the facts set forth therein, and shall be produced to the Chinese inspector in charge of the port in the district in the United States at which the person named therein shall arrive, and afterwards produced to the proper authorities of the United States whenever lawfully demanded, and shall be the sole evidence permissible on the part of the person so producing the same to establish a right of entry into the United States; but said certificate may be controverted and the facts therein stated disproved by the United States authorities.”
It will be noted that this mandatory provision of law does not require a certificate issued by a diplomatic or consular officer of the Chinese Government, but one granted by the Chinese Government itself—that is, a certificate issued by some official who has been clothed by the said Government with special authority, not with the general powers attaching to the office of a minister or consul. This condition is not the result of a technical departmental construction, but of the plain language of the law itself. In the case of United States v. Mock Chew (54 Fed. Rep., 490), it was held by the circuit court of appeals, ninth circuit, on January 30, 1893, that, to quote from the syllabus—
“A certificate of identification given by a Chinese consul in Japan, and viséed by the vice-consul-general of the United States at Yokohama, is not sufficient under section 6 of the exclusion act of July 5, 1884, in the absence of evidence other than the certificate itself, that the consul issuing it has authority from the Chinese Government to do so.”
[Page 270]And, to quote further from the body of the decision—
“It is undoubtedly competent for the Chinese Government to authorize its consuls to give the certificate prescribed by section 6, but there is no proof in the case that it has done so. The appellee contends that the certificate itself is evidence of authority to issue it. We do not think so.”
This decision is, of course, final upon the point raised incidentally in the Chinese minister’s note.
To take up the specific case, that of Dr. F. C. Yen, which has occasioned this correspondence, I have to state that the so-called “certificate” presented by Doctor Yen upon his arrival at San Francisco on March 7 last reads as follows:
“Imperial Chinese Consulate-General,
“Johannesburg.
“To whom it may concern:
“This is to certify that Dr. F. C. Yen is a doctor of medicine by profession, and is now going to the United States of America to complete his course of studies.
“I request that the authorities of the countries through which he may travel to offer him every assistance and protection of which he may stand in need.
“Given under my hand, this 9th of January, 1906, at the consulate-general of Johannesburg.
| [seal.] | “Yem Yuk Lin, “Chinese Consul-General for British South Africa. |
“Johannesburg, January 10, 1906.
“Good:
“N. J. worthington,
“American Consular Agent.”
This paper, even though the Chinese consul at Johannesburg were duly authorized to represent the Chinese Government in the granting of section-6 certificates, does not meet the requirements of the statute as hereinbefore quoted.
In view of the foregoing, and-at the instance of the Secretary of Commerce and Labor, I have the honor to call your attention to the necessity, if subjects of the Chinese Empire belonging to the exempt classes are to be admitted to the United States from countries other than China, that persons located in such foreign countries shall be empowered by the Government of China to grant to its subjects there resident the certificates in question; and to request that you will take the proper steps to obtain for the files of the Department of Commerce and Labor a regular section-6 certificate in the case of Dr. F. C. Yen.
Accept, etc.,
- Not printed.↩