Memphis daily appeal. [volume] (Memphis, Tenn.) 1847-1886, 1878-08-15

the organic law Of a State against aliens, and
especially against the Chinese, who can never
become citizens, will not conflict with that
amendment to the constitution, which re-
CARDS the right of citizens only.
3. Can we debar them by constitutional
limitation from fishing III our inland waters,
from receiving license to engage IN licensed
business, 10 use our State courts, and from
other privileges enjoyed by citizens? | am
Of the opinion that either by the organic law
of State or by ordinary legislative act the
rights OF fisheries IN the inland waters can
be wholly controlled, so that in regard to the
licensing to trade and do business, and that
aliens may be made incapable of suing and
being sued la the State courts, and deprived
Of other privileges enjoyed by citizens. |
can have no doubt that all these matters re-
ierred to in the third question are within the
pO yer of tine State, and that the State Is not
controlled or hlndered IN her natural police
regulations by the most favored nation
''clause in the treaty"
4. Can 4 State levy capItation tax upon
such aliens? | am of the opinion that under
the decisions OF the court no State can levy
c3pltatUn tax upon the subjects of the en-
pre- OF China, as 2 condition precedent to
their landing upon the shore of that part of
the United States within its limits. At the
same time have no doubt that the taxation
of those WHO choose to reside within its bor-
ders, being aliens and not citizens of the
United States, Is entirely within the power OF
the State to make such determinations against
them as It chooses. How much and IN what
manner 1t may tax Its own citizens may be
regulated by the organic law of the State, but
for stronger reason 1t may protect itself
against the pauperism OF any aliens residing
therein who may so become by levying tax,
however onerous, to protect itself from such
pauperism. Nor does the most favored ma
ton clause oppose any hindrauce to this
rlNu IL a n cor nm M ina
alone, which has always been held to be
within its own power. While a State may
not discriminate against the citizens of other
States, and, therefore, citizens OF the United
States, any taxation or restriction, as COM
pared with its own citizens, under the consti
tuition is not bound TO receive and support
within its borders, without power to protect
itself, the citizens of foreign country. Nor,
In my judgment, Is it within the treaty.
making power Of the United States, even if
it were attempted to be exercised, to impose
such burden upon any one State.
D. Can State confer on municipalities the
right to exclude them from the city limits
the State may exclude aliens by laws duly
enacted from occupying any portion of its
territory, or restricting the manner Of their
occupation, or require them to occupy given
portion of its territory. A familiar example
OF the exercise OF this power may be found
In the sanitary laws. These have always been
exercised through the municipal authorities.
If State can say where, for reasons of puo-
he health, any portions of its citizens shall
reside and not otherwise, it is difficult to see
why, for any other reason of public policy,
State may not exercise a like power. No one
would contend that a State might not say
that more than a given number of jnhab-
ltaLtS should not occupy given quantity OF
territory for reasons of health, or even for
economical reasons, or for protection against
fire communicating from building to build
ing There has been no decision giving a
limit to the exercise Of this power, and |
know of no limit to it except the legislative
wiil-that is, IN regard TO its own citizens,
aGd, of course, citizens of other States, and
still more, OF course, citizens of the nations
that have no right in the State except the right
to soJOurn under such regulations as the State
chooses to adopt, if that may be said, that
such exercise of power would he restrained
treaty referred to. Then the restrictions as
to place Of residence, If such were the legis-
latlve will, might well be made and applied
to all aliens, and surely then such regulations
and determinations against the Chinese as
the necessities Of the case IN the Judgment Of
the legislature require could be made, and
yet not to be subjected to the hindrance of
the most favored classes" clause. For ex-
ample, IN case OF a treaty with a nation
where large portion Or all of its subjects
were leprous, could not the State protect it
self from having them III It's large cities be-
cause subjects of other nations who had the
like favored nation clause In their treaty, who
are not leprous, were not excluded from the
city limits? The question must resolve itself
into this: That the public policy of exclusion
must remain with the legislature to be exer-
cised through such agents as the State chooses
10 intrust with this portion of its power.
The sixth question: What can the State do
n L.
by saying: What cannot the State |
do to protect itself from curse? and | do |
not know what 1t cannot do. But the ques- |
ton returns to US: Who is to determine |
whether the Chinese is curse? Is there any |
higher power to which this question can be |
submitted than constitutional convention of |
a State? | certainly do not know OF any, |
Each State must determine how to get rid of |
the curse of famine, the curse of incendia- |
rlsm, the curse of crime, the curse of ped |
ding liquor to its inhabitants, and the curse |
Of pesulence IN its own way, and many de- |
clslons OF the supreme court upon most of |
these questions have sustained the right of |
The State to deal with them according to its |
sovereign will. A State may send beyond |
is borders, so far as the individual is con-
eerned, any person or persons therein who is |
deemed a curse-as did our Puritan fathers, |
The Baptists and Quakers in the earlier times, |
md as do their sons In Massachusetts |
with the paupers and criminals that are |
sent upon them from foreign nations. No |
State can, against its will, so long as it is in
dependent and sovereign, be made the lazar-
louse OF the world, or OF even one-third of
he population of it; nor do | believe that |
here Is anything in the constitution of the |
United States which gives to the congress of
he United States a right to pass any law re-
Iulrlng a State to be such lazar-house; and if
here IS nothing in the constitution which
TlVPS gross cOmOOSpd of tho tb-no |
branches Of the law makiDg power, power to
make such a law, ! cannot find anything in the
constitution which gives to one branch-the
right by treaty to make it the
upreme law Of the land that any State shall
DC the laz7r-house of Asia.
Whether the adjoining Territories to Cali
oTnIa quietly submit to have the Chinese |
poured over upon them is question which
california must adjust with its neighbors,
md that question IS one with which the
Jhlnamen have nothing to do. | know of no
civilized nation which has not exercised the
,ow6r OF deportation of obnoxious aliens
'ertain it is that England exercised that
,ower in the case Of Vice President Aaron
Burr, who was ordered out of that country,
nd our alien law of the administration of
Ohm Adams was an exercise of that power
y this country as a nation, and, while the
7lsdom OF the Law was very much doubted, |
link its constitutionality was tacitly, at least,
maintained.
l repeat my regret that have had no more
me to give to the consideration of these
uestiors which | have not attempted at any
degree to argue, but simply to
tate my opinion thereon; but | hope | have
one enough at least to provoke discussion
lereon, and l will be obliged to you if you
ill furnish me with such discussions, so that
may be able in the light of them to revise
~ opinions hereafter, or to reply to such ar
uments and suggestions as may seem to
1ntravene them
l have the honor to be very respectfully,
our obedient servant, BENZ. F. BUTLER.
DENNIS KEARNEY, ESQ, Boston, Massachusetts.