The Salt Lake herald. [volume] (Salt Lake City [Utah]) 1870-1909, 1889-03-27
DEFYING CONGRESS.
Such 1t Is Claimed Chae Chan
Ping is Doing.
THE INVITATION WITHDRAWN.
Counsel for the Uuited States File Their Brief,
in W hich They Show the Right OF
the Governments


WASHINGTON, March 26.-The argument
of John f. Swift and Stephen NJ. White,
the counsel for the United States in the
CHAE CHAN PING
ease in answer to the brief of Judge
Hoodlev and Mr.. Carter will be filed in the
Supreme court to-day. 1t was ready
Yesterday but the court had adjourned on
account of the death of Justice Matthews.
Mr.. Swift and Governor White in their
closely knit argument thoroughly traverse
III argument of the other side and assert
the indefeasible of this country to control
its own legislation on its own soil.
They strike at the root of the matter IN
their opening sentence. "This case arises
upon the claim of the appellant to enter
the territory Of the United States and re-
side there, in defiance of the distinct terms
of an act of Congress prohibiting his do
ing 500
'.The claim is based" they continue,
upon the rights supposed to accrue to him
under the treaty of 1868, between China
and this country, and the acts of Congress
of 1882 and 1884 all prior to the act OF 1888,
which forbids his coming.
THE entire line of treaties providing for,
and the acts of Congress regulating Chinese
immigration, are exceptional IN American
legislauian, and so far US we know without
precedent in the laws and treaties govern
il the intercourse between civilized states,
THE transit, in time of peace, OF well DIS
posed persons from one country TO another
for the purpose of trade or curiosity was
always permitted by the common and
established usages of Christian communl-
ties.
MUST TREAT THEM WELL.
THAT they must be kindly treated and
protected in their persons and property
while abiding in the country as temporary
visitors, or when they were moving about
as travellers or residing and pursuing their
occupations as deniZeuS, was never queS-
toned No treaty between sOverelgns was
considered necessary to secure these prlYS
leges. And when in case Of war famine, or
other great eXigency the public good seemed
20 require their absence, such strangers
were given timely notice to retire IRON the
country, and no breach of public faith or
even of the laws of hospitality was thought
10 have been committed. But China and
GOther oriental nations have pursued a
different policy, namely, that OF practically
inhibiting trade and intercourse with out
side people.
s.In order to induce China to change her
customs in this respect, the Burlingame
treaty was made 1t cannot be justly said
t&at it was done in order to increase or
wen to secure the coming hither of Chinese,
for that they could always do so long as we
allowed it. Under our Constitution and
laws then in force, and under the general
customs and usageS Of civilized nations,
existing as part of our laws, the privileges
thus extended by the Burlingame treaty to
China can only be regarded as in the nature
of price paid that nation to abandon, IN
part. their ancient custom of nOn-lnter-
course and throw open their doors to our
merchants and their commodities
That treaty, like all others between
sovereign states, was subject to be term
mated by the act Of either party. The
agreement was found by experience to
work to our disadvantage, because OF the
too free immigration Of a certain class OF
Chinese: and Congress resolved, for rea-
sons satisfactory to itself, to resclnd IL so
TAR as it allowed the free coming hither OF
the unsatisfactory class to-wit: Chinese
laborers.
ONLY ONE QUESTION.
s.There is but one question before the
court which is, as to the power OF Congress
to reScind the treaty. II the United States
is a sovereign and Independent state 1t
cannot be deprived of its sovereignty by
anything short Of superior force coming
from without. 1t certainly cannot be de
prived of it in piecemeal by Congress or
the Executive through the treaty making
power
1.-THE power TO determine what individuals
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 IN
u0ercourse, how they shall be treated While
there. how long they may remain and When
and under what circumstances they snail
be required to depart, are essential attrib
utes and prerOgatiYeS Of sovereignty, and
state can only lose them by being subiug
ated by another, in fact, by ceasing to be a
state; in which case they are transferred to
the conqueror. who thereafter exercises
them and is the state.
ssTheresolve Of the United States to ter
inmate the privilege Of Chinese labOrers o
come at viii to this country resulted III the
treaty of November II, 1880, and the acts of
Congress of 1882 and of 1884, which, by
Il, their terms, exclude the great mass Of the
Chinese labOrers, and finally the act OF
October |. 1885 which reached, and in
plain terms covered the case of Chae Chan
Ping, the appellant.
FITS THE PRESENT CASE.
.:That the act of October /, 1855, distinctly
and III every part fits the case Of the ap-
If the Congress of 1883 had the power to
exclude him, seems to be conceded by his
learned counsel. The contention Of the
counsel of Chae Chan Ping involves not
only the sovereignty of the United States,
but the opower of the last or existing Con-
cyress over the acts of other and former
national legislatures. Neither the Congress
of 1884. nor any other Congress, dould di-
vest the United States of any of the attri-
butes of sovereignty. Nor could the Con
qress of 1884 by the handsiof future Con
crosses prevent the repeal or modification
lAOf laws as the public good from time to
Mime should seem to require. 1t would be
Idle to cite authorities upon these points,
even could any decision Of a point, elemen-
tary in its nature be found. 1t would be a
serious and most illogical adjudication Of
the law to hold that the alien appellant,
Chae Chang Ping, should, in spite Of the
act of Congress of 1888, land In the United
States in view of the fact, which it is futile
to DENY, that the same Congress could have
passed at the same session, an act requlr-
ing him. in common with any or all other
aliens, to depart with or without notice, or
in a time given, or peremptorily, and TO
have him as an alien finally thrust across
the frontier and expelled if necessary.
THE GREATER AND LESSER POWER.
sSThe greater power must.surely include
the lesser. If he could be sent away after
coming, ne can be kept out.
eThesgentlemen of the opposite side eVl-
IDENTIFY appreciate the difficulty, and try TO
avoid it.
SIN the brief of counsel on file In this case
the famous ''alien and sedition acts" are
cited which provided in effect, for doing