Sacramento daily record-union. [volume] (Sacramento [Calif.]) 1875-1891, 1889-03-26

WASHINGTON, March 25ih.-The Joint
brief of John F. Swift and Stephen NJ
White, eoansel for California in the case o,
Chae Chan Ping vs.. the United States tc
test the constitutionali,y of the Scott Ex.
clrsion Act, which viii he argued in the
Supreme CoErt in few days. has been
prepared. Az the outset counsel say that
the entire line of treaties providing for,
and the Acts of Congress regu 'aring Chinese
immigration are exceptional in American
legislation and without precedent in the
laws and treaties governing intercourse BE-
tween civilized States Counsel say:
The transit. in time Of peace, of we I-disposed
persons frem one coantry to another tor the
purpose OF trade or curiosity was alvays per
mitted by the common and established usages
OF CHRISTIAN communities That they must be
kindly treated AID protected in their persons
ana property. while abiding IN the co;,ntry as
temporary visitors, or when they were moving
ABOUT as trayeiers or residing or pursuing their
occupations as denizens, was never questioned.
NO treaty between sovereigns was considered
necessary to secure these privileges and when In
case OF war, famine or other great emergency
the puohc good seemed To require their absence
such strangers were given timely notice to re-
Ilre from the country, and no breach of public
faith or even of the laws of hospitality was
thought 70 have bSen committed
THE ORIENTAL POLICY.
But China and other Oriental nations have
pursued ultferent policy, namely, that of prac-
tlcally lnhiblting trade and intercourse with
outside people. In order 10 induce China to
change her customs in this respect the Bur
Ilngahe treaty was made. II cannot be justly
SAID that II was done in order to increase or
even TO secure the coming hither of Chinese
for that they could always do. so long as we
allowed II under our Constitution and laws then
IN force, and under the general customs and
usages of civilized nations existing as a part of
our laws. The privileges thus extended by the
Burlingame treaty 20 China can only be re-
garded as In the nature of a price paid
that nation to abandon in part its
ancient custom of non-intercourse and
throw open their doors to our merchants and
their commodities. That treaty. like all others
between sovereign States, was subject TO be ter
minated by the act of either party. The agree
ment was found by experience to work to our
disadvantage, because of the too free immigra-
ton of certain class of chinese. and Congress
resolved, Tor reasons satisfactory to itself to re-
SEND 1t so far as II allow ed the free coming
hlther OF this unsatisfactory class 10 wit: Chi
nese laborers.
But ONE QUESTION INVOLVED.
There is but one question before the Court
whlch is as to the power of Congress to rescind
the treaty. II the United States is sovereign
and independent State, 1t cannot be deprived of
us sovereignty by anything short of a superior
force coming from without. 1t certainly can
not be deprived of it in piecemeal by Congress
or the Executive through the treaty making
power. The power to determine what indi-
vlduals OF the human race, not citizens of the
United states may or may not peacefully come
into the country from abroad in the ordinary
course OF commercial or social intercourse
how they shall be treated while here how long
they may remain, and when and under
to depart, are essential attributes and
prerozatives OF sovereignty, and State can
only lose them by being subjugated by another
IN fact by eeasing to be a State-in which
case they are transferred to the conqueror, who
thereafter exercises them and is the State The
reso ution of the United Stares to terminate the
privilege of Chinese laborers to come at will to
this country resulted in the treaty of November
II, 1880. and the Acts of Congress of 1882 and of
1854, which by their terms excluded the great
mass of Chinese laborers, and finally the Act of
October /, 1885, which reached and in plain
terms covered the case of Chae Chang Ping, the
appellant.
Counsel say that the Congress of 1884
could not tie the hands of future Congress.
and that the Congress of 1883 had the power
to exclude the appellant from the country.
The brief continues
sELFEvIDEET PROPOSITION.
1t would be a curious and most illogical ad-
judication of law TO hold that the alien respond
ent Chae Chang Ping, could in spite OF the act
of Congress OF 1888. land in the United States in
NleW Ol lHe ldct-WnlcD IL Is lutlle 10 Qeny-thAt
the same Congress could have passed at the
same session an Act requiring him, in common
with all aliens, to depart with or without no.
tlce, or in a time given peremptoriy, and 10
have him, as an alien. finally thrust across the
frontier and expelled if necessary The greater
power must surely include the lesser. If he
could be sent away after coming, he can be kept
out.
In answer to the citation of the Alien and
Sedition Acts by counsel for Chae Chang
Ping, Swift and White say:
The appellant, or his counsel, may protest
that in the decision rendered they have not the
power, nor has the Court the power to question
the correctness of the conclusion that these acts
were strictly within the power of Congress- no
matter how unwise or how unpopular they may
have been considered to be. In fact, the power
of Congress to deal with aliens substantially as
it may consider the public good to demand; to
expel them from the country with or without
notice, or to forbid them leaving, if it shall
seem best, or to require them to withdraw to
some specified part of the country and there re-
main under surveillance and to i'm
prison them upon refusal to obey, was
decided and upheld by Judge Washington
in the Lockington case [Lockington vs. Smith
C. C. 1851, and is beyond question the law of the
land: and the power to do so is an essential at