He, however, went beyond the spirit of the act and the judicial decisions, by providing, in a circular dated January 14, 1885, for the original issuance of such a certificate by the United States consular officer at the port of departure, in the absence of a Chinese diplomatic or consular representative thereat; for it is clear that the act of Congress contemplated the intervention of the United States consul only in a supervisory capacity, his function being to check the proceeding and see that no abuse of the privilege followed.  The power or duty of original certification is wholly distinct from that supervisory function.  It either dispenses with the foreign certificate altogether, leaving the consular vise to stand alone and sufficient, or else it combines in one official act the distinct functions of certification and verification of the fact certified.

The official character attaching to the consular certification contemplated by the unamended circular of January 14, 1885, is to be borne in mind.  It is not merely prima facie evidence of the status of the bearer, such as the courts may admit in their discretion; it was prescribed as an official attestation, on the strength of which the customs officers at the port of entry were to admit the bearer without further adjudication of his status unless question should arise as to the truth of the certificate itself.

It became, therefore, necessary to amend the circular of January 14, 1885, and this was done on the 13th of June following, by striking out the clause prescribing original certification of status by the United States consuls.  The effect of this amendment is to deprive any certificate the United States consuls may issue of the value it purported to possess as sole permissible evidence under the statute when its issuance was prescribed by Treasury regulations.  There is, however, nothing to prevent consuls giving certificates of facts within their knowledge to be received as evidence in the absence of statutory authentication.

The complaint of the Chinese minister in his note of March 24, 1886, is that the Chinese merchant Lay Sang, of the house of King Lee & Co., of San Francisco, having arrived at San Francisco from Hongkong and exhibited a certificate of the United States consul at Hongkong as to his status as a merchant, and consequently exempt under the treaty, was refused permission to land and was sent back to Hongkong by the steamer which brought him.  While the certificate he bore was doubtless insufficient under the present law, it is to be remembered that there is at Hongkong no representative of the Government of China competent or authorized to issue the certificate required by the statute.  The intent of Congress to legislate in execution of the treaty is thus defeated by a prohibition directly contrary to the treaty, and conditions are exacted which, in the words of the Supreme Court hereinbefore quoted, “it was physically impossible to perform.”