The sun., 1878-08-12
VOL. NO. 346.
BUTLER ANSWERS KEARNEY.
IN OPINION THAT WILL MEET WITH
FAVOR IN CALIFORNIA.
Deciding that n state Has the Power to Levy
a Capitstion Tax On the chinese, and
Otherwise to Protect Itseif from the Curse,
ir II H. - Curse. OF Chinese Immigration.


nu l. Curse. OF Chinese Immigration.
SAN FRAxCIsco. Aug. 1.-THE Chronicle
prints the reply OF Gen. b. F. Butler of Massa-
chusetts to the questions propounded by Dennis
Kcarney in regard to the Chinese problem. The
following Is Buter's letter:
Boston. Mass. Aug. 8. 1878.
DEAR SIN: Having proposed to me certain
questions of constitutional law regarding the
rights and powers OF the State Of California. as
one Of the United States of America in relation
10 the subjects OF the empire OF China.
who now may he. or may hereafter come
within lis borders hnstcn to answer. Let
me premise. however. that as these questions
are Of the gravest character. and the action
which you inform mo You propose to take to-
ward the Chinese il to be of the most stringent
nature would have greatly preferred to have
taken time to answer when free from the many
onerous engagements now pressing upon me.
and after thorough examination of the treaty
provisions and the decisions given In corrcla-
aye cases by the courts. But. as you say the
time Of your stay is limited. and as my own
public duties call me away at once. | can give
you only such impressions as occur to me on
too cursory examination OF the subject. am
relieved. however, by the form Of your ques-
tons, which only relate TO the power Of your
State. and not to the propriety or wisdom Of the
action to be takon.
The treaty provisions which seem TO bear
upon this matter may be found in the treaty
proclaimed at Washington the 9Th day OF
February. 1870 the trcnty itself bearing the
date Isth day OF July. 1905. by inc n''n article
Of said treaty the United States and China
.cord,allv recogniza tho inberent md inalienn-
BILE right OF man to change his home and ale
glance. and also the mutual advantage OF tho
free migration and emigration Of their citizens
and subjects respectively from the one country
to the other for purposes OF curiosity OF trade
o. as permanent residents Ihe hiHh contract
Ing parties therefore JOIN In reproDating any
other than an entirely voluntary emigration for
'Ase PURPOSES ine' consequently aHr"c "
pass laws making it a penal offence for citizen
ny ,s'''s "a 80,
=, o,S ,n eo,er 70 ,nr n,''r w.. 'a'IS Cr V'
ne.e subject or citizen of the United States
70 ,,,re citi,ors ., ,ho Tni,od s,o,es -, Cn,no or
10 any foreign country without their free and
voluntary consent respectively" Article G pro-
Ndes that Chinese subjects visiting or resid-
ing In the United States shall enjoy the same
nrivil,ues tndan,nities md exap,ntiops T., re
prNi'.~es' lnuenlhiues; anu eAeinp''ons' IN re-
spect 70 travel OF residence, as may there be
enjoyed by the citizens or subjects Of the most
favored nation: but nothing herein contained
III -, a., y'. .'' -. " - ~ "a,
rens of the United states in china nor upon the
subjects of China in the United States
Article provides that Chinese sub
Jets shall enjoy all the privileges Of the
public educational institutions under tho con-
troll Of the Government OF the United States.
which are enjoyed in tho respective countries
BY tho citizens or subjects OF the most favored
nation; and the citizens OF tho two countries
respectively may freely establish and maintain
schools within the empire OF China at those
places where foreigners are by treaty permitted
same privileges and immunites in the United
States.
Such being the treaty provis sion You ask, first.
"A State. 10y
Constitution. TO prevent Chinese Immigration p
Court Of the United States and under the treaty.
State cannot. by its organic law or Legislative
the Snbact greh af tbs Us empira n Of rhina o'
Second" What discrimination can II make
by amendments 10 lts Constltnuoh AGAINST Aliens
ard thcse mol eapaple OF adnls5iOh 70 ctlzen-
ship without conflicting with tho Fourteenth
hmendment 70 the Constitution Of he United
states applies only TO naiuralzed and native
amy action taken by virtue Of its organic law by
a state against aliens, and especially against
the chinese. VINO eh't never become cltlHens,
Tlil not eonnih Win thM hnenhiment i 10 the
CONSTITUTION. which guards me rights oil cltlzens
o@r{ @Tr{Sird-"can we debar them by constitutional
srn,n rni,0 IRON nnse IA n Out ,nnnd m waters
Dn,sinsss ~, from using our State courts ahi from
o,Ict privileges enjoyed Dy clulehs am OF
p'Sn ss 'n eG by e srsntye gEsh,d aw c o.
TIE rights OF fisheries IN its inland
10 the licensing 10 trade and do business and
that aliens may be made incapable OF suing or
being sued in the State courts. and deprived Of
y'hrr privileges enjoyed by cltHrns. can
have no doubt that all the matters referred 10 in
ue third question are within the power Of the
St!t' and that the state Is not controlled or him
dercd III her internal police regulations by the
most favored nation clause in the treaty.
FOURTH" Can a State levy a capitation tnX on
such aliens?", am OF opinion that, under the
decisions of the court. no state can levy u capi-
mlon tax upon the subjects Of the Emperor Of
a precedent landing
np0n the shore oi that part oi the United States
Withln It's limits. Al the same time have no
.Nubt HAT the taxation oi those vino cnoose
to reside within its borders, being aliens and
hnt ciiizens OF the United states Is entirely
wlthln me power OF me state 10 make such
nscrlminatlons against them IA II chooses.
bow much, and N what manner II may tax It's
pwh 'ltllens, may De regulated ny the organic
e" OF tle state but Tor u stronger reason
~ may protect tseii against the paupcrism
oi any Aliens residing ihereln, by lcNying
Wy however onerOus, To protect ltsell from
such pnuperiSm. Nor does the " most favored