British and Foreign State Papers

It is fairly to be assumed that the Chinese persons, whose case we are to consider in this review, are those of the classes privileged to be admitted into the United States, who are subjects of China, resident in some other foreign country. The Treaty referred to regards, in this connection, only "Chinese subjects" in terms and by necessary intendment; and the opinion last cited expressly relates to Chinese subjects alone. The Act of 1884 embraces Chinese persons who are subjects of other foreign Governments 28 well as those who are Chinese subjects; but the opinion first cited, construing section 6 of this Act, necessarily has in view only the latter class, since it may hardly be doubted that under this section it was, and is, requisite that Chinese persons entitled to admission to the United States, being subjects of some other foreign Govern ment than that of China, must produce a certificate issued by the proper officials of such Government and not by those of China. At all events, the question as it affects Chinese persons, other thau Chinese subjects, is beyond the scope of our inquiry, and we may therefore dismiss that branch of the case. In any view, it is reasonable to conclude that if the determination reached by me is that Consular officers of China in a foreign country are not authorized to issue to Chinese subjects resident therein the certifi cates prescribed by the Act of 1884, à fortiori, such Consular officers are not authorized to issue these certificates to Chinese persons who are the subjects of such other foreign country.

Section 6 of the Act of the 5th July, 1884 (23 Stats., 115), provides that

.... every Chinese person other than a labourer, who may entitled by said Treaty (the Treaty of 1880) or this Act to come within the United States, and who shall be about to come to 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."....

The opinion first cited herein construing the language of this section that the "permission" and "identification" of the Chinese person shal be "evidenced by a certificate issued by such Govern ment," reaches the conclusion that certificates accurately con forming to the requirements of section 6 and issued by Consular officers of Cha in a foreign country, duly empowered by the Cones Government, are valid. The words of the Act, "such ..such Government" point to the "Chinese Government or.... other foreign Government of which at the time such Chinese person sali de a subject." This language is to be taken distributively

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rather than as allowing an alternative source for the certificate, either to Chinese subjects or to persons of Chinese descent who are not Chinese subjects, and hence the conclusion of the opinion in question quite clearly implies, as before indicated, an application only to subjects of China resident in another foreign country.

The situation was changed by Article III of the Convention of 1894 between the United States and China (28 Stats., 1210), which reads:

"To entitle such Chinese subjects as are above described to admission into the United States, they may produce a certificate from their Government or the Government where they last resided viséd by the Diplomatic or Consular Representative of the United States in the country or port whence they depart."

My predecessor was of the opinion (21 Op., 347) that the provisions of this Article of the Treaty of 1894 are self-executing, and are a part of the supreme law of the land; and he holds, in effect therefore, that while prior to the Treaty of 1894 a certificate from the foreign authorities as to privileged Chinese subjects resident within a foreign jurisdiction would have been insufficient, and a certificate from the Chinese Government or its accredited Consular officials would have been necessary, the Treaty being subsequent to the Act of 1884 has modified the requirements thereof, so that the certificate must now be issued in such cases by the foreign Government and not by officials of China. This opinion evidently regards the Treaty as mandatory on this point, and suggests no alternative under which such an applicant for admission might properly produce either the certificate of Consular officials of China or the certificate of the foreign Government. I concur in this reasoning and conclusion. There is no fundamental inconsistency or repugnancy between the Act and the Treaty, nor between the opinions of my predecessors considering them respectively, nor has any radical change in procedure resulted from the partial modification of the Act by the Treaty. The certificate is the same in its contents and incidents, but the source from which it issues in the case which we are considering has been transferred from the Chinese Government to the foreign Government of residence. The whole scope of the question may be summarized as follows:

Chinese subjects of the permitted classes coming into the United States from China must produce the certificate of the Government of China, and coming from other foreign countries in which they are residents, must now produce, under the Treaty of 1894, the certificate of the Government of such countries, and not, as under the Act of 1884 (as considered in 20 Op., 693), the certificate of Consular or other proper officials of China. It lies beyond our inquiry, as I have intimated, to determine whether, granting that

under the Act of 1884 the certificate of a Chinese person being the subject of another foreign Government must be issued by that Government when he comes from its jurisdiction into the United States, it should be issued by that Government or by the Govern ment of residence when he resides elsewhere and proceeds therefrom to the United States. To such Chinese persons the Treaty of 1894 does not legally extend, and it has not been determined, so far as 1 am aware, whether as to them the test of relation as subject or citizen indicated by the Act of 1884 or the test of residence by an equitable application (so to speak) of the principle of the Treaty, is to be invoked. It may be that this latter question is not of practicable moment at present, or that you have already in the regulations and practice of your Department disposed of it.

I therefore respond to your request by stating that, in my opinion, there is no authority to be derived from our existing laws granting to Consular officers of China in a foreign country the right to issue the certificates prescribed by section 6 of the Act of the 5th July, 1884.

Very respectfully,

JAS. E. BOYD, Acting Attorney-General

The Secretary to the Treasury.

MESSAGE of the Acting President of Hawaii, on the Opening of the Legislative Chambers. Honolulu, February 16, 1898.

SENATORS AND REPRESENTATIVES,

In the absence of the President I present to you several matters for your information and consideration.

Exercising the authority conferred upon him by the Constitution, and following the spirit of a resolution passed at your last regular Session, the President has, with the approval of the Cabinet, made a Treaty of Political Union with the United States of America.

Negotiations were opened early in the month of April 1897, which resulted in the signing of the Treaty of Washington on the 16th day of June, following, by the Plenipotentiaries of the two Governments; on behalf of the United States of America by the Hon. John Sherman, Secretary of State, and by Messrs. Francis M. Hatch, Lom raton, and William A. Kinney, for the Republic of

Hay that th

tion of our Plenipotentiaries and finding in its several Articles sufficient provisions

for the benefit and protection of the Republic, and desiring to ascertain the pleasure of the Senate in regard to its final ratification, the President called a special Session of that body which assembled on the 8th day of September, 1897. After mature consideration of the terms of the Treaty, the Senate, by an unanimous vote, consented to its ratification on the 9th day of September. The Treaty was signed by the President two days later. The American copy of the Treaty was transmitted by President McKinley to the Senate of that country, on the 16th day of June, 1897, accompanied by a special Message recommending its ratification.

Until the final exchange of the ratifications the sovereignty of this country continues. It is therefore necessary for you to consider the biennial and special Appropriation Bills which will be presented to you by the Minister of Finance, and to enact such wholesome laws as may be required for the well-being of the people.

Owing to the intimate relations existing between the Republic and the United States of America, great care should be exercised that no action be taken which might interfere with the scope of the Treaty above referred to, nor in any way jeopardize the present satisfactory relations, nor hinder the future presentation of the Treaty should it fail at the present time to receive the approval of the Senate of the United States, where it is now pending.

During the months of March and April 1897 several steam-ships left the ports of Japan for this country, having on board a large number of immigrants. In the course of his investigations in regard to the qualifications of the immigrants to land, the CollectorGeneral of Customs found that a large number were unable to conform to the requirements of the laws appertaining to the landing of aliens, and for that reason denied them that privilege. The immigrants were detained at the quarantine station until taken back to Japan by the Immigration Companies who had assisted in bringing them to this country. This action on the part of the Collector-General drew forth a protest from the Japanese Government, and much correspondence has been exchanged upon this subject.

As the correspondence progressed it became evident that it might be difficult to arrive at a satisfactory settlement of the controversy. For this reason it was suggested by this Government that the points of difference be submitted to disinterested arbitrators for decision. The framing of issues upon which the decision of the arbitrators is to be invited is now being proceeded

with.

The receipts of several revenue-producing bureaus s

under the Act of 1884 the certificate of a Chinese person being the subject of another foreign Government must be issued by that Government when he comes from its jurisdiction into the United States, it should be issued by that Government or by the Gover ment of residence when he resides elsewhere and proceeds therefrom to the United States. To such Chinese persons the Treaty of 1894 does not legally extend, and it has not been determined, so far as I am aware, whether as to them the test of relation as subject or citizen indicated by the Act of 1884 or the test of residence by an equitable application (so to speak) of the principle of the Treaty, is to be invoked. It may be that this latter question is not of practi cable moment at present, or that you have already in the regulations and practice of your Department disposed of it.

Very respectfully,

JAS. E. BOYD, Acting Attorney-General

The Secretary to the Treasury.

MESSAGE of the Acting President of Hawaii, on the Opening! of the Legislative Chambers. - Honolulu, February 16

1898.

SENATORS AND REPRESENTATIVES,

for

In the absence of the President I present to you several matter information and consideration.

your

Exercising the authority conferred upon him by the Constitu tion, and following the spirit of a resolution passed at you last regular Session, the President has, with the approval of th Cabinet, made a Treaty of Political Union with the United State of America.

Negotiations were opened early in the month of April 1897 which resulted in the signing of the Treaty of Washington on the 16th day of June, following, by the Plenipotentiaries of the t Governments; on behalf of the Unite Hon. John Sherman, Secretary of St Hatch, Lorrin A. Thurston, and public of Hawaii.

Having reviewed the actir

that the Treaty contained i

tes of America by th by Messrs. Francis M Kinney, for the "

nipotentie Articles

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