The Salt Lake herald. [volume] (Salt Lake City [Utah]) 1870-1909, 1889-03-27


as Chinese we're concerned until the inaug
uration OF the very legislation upon which
this latter bases his pretensions. The act
of 1882 restricted the privileges heretofore
enjoyed by subjects of the Chinese empire.
The act of 1884 extended in the same direc-
ton and was progressive, and the act of 1855
merely completed that which Congress
would have done in the first instance and
by a single act. Appellant practically adj
mits that he could now be wholly debarred
from inhabiting this country as long as the
United States continued so minded, had
the intention been as urged by counsel.
eve must conclude that right was con
ferred to go from the country as well as to
enter it. But it is common knowledge that
no one has ever said that the Cinnamon
shall not go. Tie effort ever has been to
exclude him. 1t has never been limited that
it was necessary to confer right in order
to provide an exit.
IF everything that counsel claims was
done actually TRANSFERRED, no franchise was
granted. What special privileges were
conferred upon Mr.. Ping! Absolutely
none. On the contrary he was restrained
day after day and session after session. At
| one time he might come and go at will
without certificate, then the certificate
was made essential; and because Congress,
for the time being, saw fit to leave him a
portion of the favors which he before en-
! JONeu, He DOlOllN dSStEUS UudJ ldluIG W GCthC
away all these privileges was tantamount
to solemn contract binding in his favor
whereby Congress covenanted to never
withdraw that which it might have with
drawn in the first instance.
APPELLANT NOT CONSISTENT.
eve cannot think that appellant is con-
sistent in conceding (brief, page ~ that no
contract was made, and afterwards (brief,
page 36) insisting that there had been an
actual grant. However this may be, we
can perceive none of the elements Of con-
tract here To begin with, Congress can
not cede away its power or avoid its duty
to exclude aliens whose presence is OBJ
noxious to the state. The right to decide
upon this subject is vested in Congress,
and however vigorously appellant or his
counsel may protest against the decision
rendered, they have not the power, nor has
the court the power, to question the cor
rectness of the conclusion. The views of
Judge Swayer upon this topic are certainly
satisfactory to all fair minds. (36 Fed w.
Rep. 1870.
NO RETURN PRIVILEGE.
''But we have shown that Congress never
attempted to confer any special privileges
or rights upon appellant The latter desir-
ing to take trip to China, obtained Ger
| titicate containing his description. He
went home, presumably visited his friends,
transacted his business and started back to
| the United States. Before the completion
| of his journey, the same government which
had previously said to him that he might,
as that power then felt disposed, return,
declared that he could not come, and be-
cause of the policy of the United States at
the time the certificate was given, and be-
cause such certificate, which was nothing
more than a photograph, was issued to pre-
vent the preparation of a fraud on the part
of Ping, it is declared that there is perfect
case of an executed contract.
Counsel noticed the difficulty to be met
in making a contract out of the treaties, the
statutes and the certificate, and hence a
| large number of authorities are cited to eS-
tablish that damage to the promise consti-
tutes as good a consideration as benefit to
the promisor. brief, pages p and 2S.)
I'VE do not dispute these elementary
propositions but have not ascertained their
relevancy. Appellant explains (brief, page
POI that if there was contractual relation,
nevertheless that because Ping embarked
there became vested in him an executed
franchise or right to return
This record disclosed that the SO-called
franchise or right to return has never been
executed, but that appellant is endeavOr-
ing to execute it. To return in defiance of
the law of Congress. Counsel, appreciat-
ing the embarrassmentS of the situation,
C0uGaNOF 10 lOcuGe JUc CONSIDERATION lOI
the supposed contract Cbrief page 25) and
declare that appellants departure cOnsti-
tuted a consideration The sacrifice in
vOlved in his departure, the detriment suf-
fered by him
I'VE are further told that the United
States invited him to go and he went, trust
ing that he might get back. VIII some one
tell US how it can be considered a detriment
to go home, whether on business or pleasure!
Is the acceptance of an invitation to leave
this country, coupled with statement that
the party leaving may return, sufficient to
deprive US Of the power of excluding the
alien who accepted the invitation and whose
presence we now deem contrary to the
peoples welfare?
Clearly, the certificate was never issued
upon any such theory. 1t was issued be-
cause the bad character of Pings country
men made it necessary to provide moder-
ately certain means of Identification. We
do not deem it necessary to discuss at length
the question as to whether the act of 1888,
as applicable to the appellant, is ex post
! fact0 law.
'sNo attempt is made to impose punish
ment for an act not punishable at the time
it was done. No payment or penalty is
prescribed for any act antecedenuy COM
mitted. Ping was ordered not to return
After this order he attempted to land. II
he finds it uncomfortable on the Belgic it is
not because Congress mad not previously
| legislated against him.
A DIFFERENCE WITH DISTINCTION.
| 1.-THE fact that he had already started can
make no difference. Before he reached
| America this government warned him off.
! That he did not hear or heed the warning
| is immaterial. Had he been permitted to
! land, and had an act been passed making it
a crime for him to do that which was in
nocent when he did it, the case might be
different.
1--WE can understand that it would be
punishment to prevent a citizen coming
ways been deemed an intiiction. But we
have never heard that it is matter of law
punishment to exclude an alien from a ma
ton whose people do not desire his pres
ence.
THE point that appellant is deprived of
his property without due process of law,
and that he does not receive the equal pro-
lection of the law, is certainly not well
tlken. No one is attempting to get any of
Pings property, in fact, it is not shown
that he has any estate, and as to his liberty,
all that this country asks of him IS to re-
main without it's confines.
HE MUSY STAY AT HOME.
"He cannot come into this republic. To
that extent only are the bounds of his habi
tation fixed And this very power the
! learned counsel admit the United States
possesses. 1t is inaccurate to say that ap-
pellant has been banished.
"He left voluntarily. 1t would be equally
correct to declare that Chinese laborers,
who were never outside of China, had been
banished by Congress, because the privilege
of coming here has been denied them. We