the vessels and cargoes coming to the United States under the flag of such foreign nation. "In order, however, that the discretionary authority conferred by this enactment should be applied in conformity with its entire spirit as well as its letter, it becomes necessary that the satisfactory proof it contemplates shall cover not merely American imports into China, but the flag under which they enter the Empire, on which point the treaty is silent. "It is found practicable, in this view of the question, to join the question of tonnage dues, treated of in my former note, to the ques tion of customs duties now under consideration between us, inasmuch as both matters are within the competency of the President under the above-mentioned section 4228 of the statutes. "I have, therefore, the honor to inquire whether you are prepared to support the request contained in your note of the 9th instant, for the accordance of the most favored nation treatment to the Wo Chung, and consequently to Chinese vessels in general which may enter our ports with cargo, by giving, on behalf of your Government, satisfactory proof on the following points: "First. Are any other or higher tonnage dues exacted in the open ports of China, from vessels of the United States resorting thereto, than are paid by Chinese vessels or any foreign vessel engaged in like trade therewith? "Second. Are any other or higher customs duties of impost exacted in China from American citizens importing merchandise thither than are paid by Chinese subjects, or the citizens of the most favored power, importing the like merchandise into China? "Third. Is there any discriminating or additional customs duty imposed upon merchandise, whether of American or foreign origin, entering the open ports of China in vessels of the United States, which is not imposed upon the like goods entering those ports in Chinese vessels, or in the vessels of any foreign power? "I have thus presented my inquiries in categorical form, in view of the circumstance that the most favored nation treatment which is sought by your note of the 9th, for the Wo Chung and her cargo, is identical with that which a vessel of the United States and her cargo receive on entering the ports of the United States. I have also, as you will perceive, limited my inquiries to the open ports of China, because a Chinese vessel coming from or trading with a port of the Empire closed to the commerce of non-Chinese vessels would necessarily have no claim to exemption or favor based upon reciprocity of treat ment. "Upon the receipt of your reply to the foregoing inquiries, the Department will be in a position to decide whether and to what extent the case of the Wo Chung and vessels of her class come within the discretionary power of the Presidential proclamation contemplated in section 4228 of the Revised Statutes, both as to tonnage and customs duties. Mr. Hay, Acting Sec. of State, to Chen Lan Pin, Aug. 23, 1880. MSS. Notes, "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 there." upon enacted that] the coming of Chinese laborers to the United States 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.' be "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 included 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, 1882, 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 provided with evidence that they are not Chinese coming 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 to Chinese coming 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." Mr. Frelinghuysen, Sec. of State, to Mr. Cheng Tsao Ju, Jan. 6, 1883. MSS. As to Chinese immigration to the United States, see supra, § 97. "Referring to my note to you of the 6th ultimo, in relation to the transit of Chinese laborers through the territory of the United States, when passing to or from a third country, I have now the honor to transmit, for your information, four copies of a recent circular issued by the Secretary of the Treasury, in which are set forth the conditions under which such transit may be accomplished." Same to same, Feb. 2, 1883; ibid. "Transit of Chinese laborers over the territory of the United States in the course of a journey to or from other countries. "TREASURY DEPARTMENT, "TO COLLECTORS OF CUSTOMS AND OTHERS: "The Attorney-General, in an opinion of December 26, 1882, addressed to the Secretary of State, has decided that Chinese laborers, in transit merely across the territory of the United States in the course of their journey to or from other countries, are neither emigrants nor 'Chinese coming to the United States as laborers,' within the language of the treaty of November 17, 1880, or the act of May 6, 1882, and further, that it is not incumbent upon such passengers to produce the certificates of identification prescribed by sections 4 and 6 of that act, provided that, by competent proof, they may otherwise establish their transient status. "The Department of State has transmitted the opinion of the Attorney-General to this Department with its approbation. Treasury decision No. 5313, dated July 20, 1882, is therefore revoked, and the following regulations are adopted by this Department to carry into effect the more recent opinion of the Attorney-General and the views of the Department of State: "1. Where a Chinese consul resides at the port of landing or entrance into the United States of any Chinese laborer claiming to be merely in transit through the territory of the United States, in the course of a journey to or from other countries, the certificate of such Chinese consul, identifying the bearer by name, height, age, &c., so far as practicable, and showing the place and date of his arrival, the place at which he is to leave the United States, the date when his journey is to begin, and that it is to be continuous and direct, shall be accepted as prima facie evidence. And such certificate shall be required in all cases where a Chinese consul resides at such port. 2. In the absence of such certificate, other competent evidence to show the identity of the person and the fact that a bona fide transit only is intended, may be received. The production of a through ticket across the whole territory of the United States intended to be traversed may be received as competent proof, and should be exhibited to the collector and verified by him. Such tickets and all other evidence presented must be so stamped or marked and dated by the customs officer as to prevent their use a second time. "3. In the case of numbers of Chinese being transported in a body under the charge of agents or others, the affidavits of such agents or others in charge, with proof satisfactory to the collector that such laborers will be conveyed without delay across the territory of the United States and delivered on board ship or into foreign territory, may be received in lieu of the tickets required in the foregoing regulation. "Descriptive lists of all such Chinese will be prepared in duplicate and presented to the collector of customs, substantially in the form mentioned in the circular of May 19, 1882 (Synopsis 5231), and showing, in addition, the place and date of arrival and the place and date of intended departure, and, when practicable, the route to be traveled. One copy will be retained on the files of his office, and one to be forwarded by mail to the collector of customs at the port of exit, who will take pains to see that the passengers duly leave the United States. If they do not, he will report the fact to this Department. One list may be made to include all Chinese transported at one time, and each list should be properly dated, signed, and sealed by the collector or his deputy. Where considerable numbers of Chinese intend to travel from the port of entrance to the port of exit under the charge of an agent, as before mentioned, it will be sufficient to have included in the descriptive list to be mailed to the collector at the port of exit the number of persons who are to go forward, the name of the agent in charge, and the route by which they are to travel.' "CHAS. J. FOLGER, "Referring to your note of the 5th instant, concerning the operation of Rule 3 of Circular No. 5 issued by the Treasury Department January 23, 1883, governing the transit of Chinese laborers over the territory of the United States in the course of a journey to or from other countries,' I have now the honor to apprise you of the receipt of a letter of the 16th instant from the Acting Secretary of the Treasury on the subject. "Concerning your intimation that such rule should discriminate between those persons who may be prosecuting their journey voluntarily and those who may be vouched for by the agent of the transportation company over whose lines they may travel, and Chinese laborers who come to this country in large bodies from China, under contract, Mr. French expresses the opinion that the Treasury Department could not inquire into the character of the persons who may be affected by that circular, but holds that if they are laborers in transit over the territory of the United States and in charge of any agent, they come within the rule specified.' Mr. Frelinghuysen, Sec. of State, to Mr. Cheng Tsao Ju, Feb. 23, 1883; ibid. "Under the treaty of November 17, 1880, between the United States and China, restricting the immigration of Chinese laborers into the United States, this Government is bound to interpose no obstacle to the free movement of Chinese of the excepted non-laboring classes who may come to this country. "United States consular officers are bound by that treaty to issue certificates to Chinese subjects not laborers, going to the United States from places where there may be no competent Chinese representative. It is advisable that there should be a fixed form for these certificates so that they may conform with law and treaty. Mr. Bayard, Sec. of State, to Mr. Manning, Aug. 11, 1885. MSS. Dom. Let. "As regards the conflict between the treaty of 1858 and that of 1880, there can be no question that the latter, being more recent, is to prevail. If there be a question between either treaty and subsequent Chinese legislation, the Department's opinion is that, internationally, such legislation cannot affect treaty obligations. I therefore affirm your suggestion that 'in cases in which an American is sued by a Chinese subject, the United States consul shall invite the proper official of the plaintiff's nationality to sit with him at the hearing, to watch the proceedings, to present and examine and cross-examine witnesses, and to protest, if he pleases, in detail.'" Mr. Bayard, Sec. of State, to Mr. Denby, Dec. 12, 1885. MSS. Inst., China. "I have received your letter of the 16th instant relative to the Chi nese. |