The herald., 1893-08-01

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deecent charged with being unlawfully
in this country. No one questions the
power of congress to prohibit the COM
eigners deemed prejudicial to the inter-
ests Of our people. Against the coming
into the country of Chinese laborers
The reasons for such legislation is an
But Notwithstanding the enactmente
evaded in many ways. BY false teeti-
have been imposed upon in cases almost
the prohibited class in large num-
bers have been smugeled into
the country in one way or an
other. To prevent all of this and
give effect to its laws upon the subject,
as far as possible, congress deemed it
wiHe by the provision in question to put
the burden Of proof OF his lawful right to
remain in the United States on the Chi
nese person or person of Chinese descent
charged with being unlawfully within
their borders.
To those not residents OF and not fa-
miliar with the Pacific slope, and not so
much subject to the evils intended to be
guarded against by the exclusion acts,
1.-THE lines laid down for their enforce
ment may" as appropriately and we'll
said by Judge Severens in the case of
Sing Lee. "a Federal Reports, 334, ''seem
hard; and because such summary deal
ing with the rights Of persons are out of
the common order to which we are &C.
customed, and are liable to produce in
Justice in many cases on account Of their
summary expedition and the presump-
ton against the prisoners, they may
seem severe; but II the power resides in
congress to enact such provisions, the
discretion whether it will do so rests in
the law making power, and the courts
must presume it was exercised upon auf-
ficient reasons"
In respect to the provision of the
Geary act putting the burden Of proof on
those coming within the class thus in
terdicted, agree with Judge Severens,
in the case cited, that there is not only
nothing in 1t violative Of the provisions
of the constitution OF the United States,
but, for the reasons given by him, and
in view of the circumstances already re-
ferred to and of others that may be sug-
SCct0Oy thdt onO RAovA6ASA4 AAA 4AonoACAA 40
not unreasonable, he says: 1.-The per-
son brought before the commissioner is
one of class which, by the terms of the
statute, is obnoxious to its operation.
That must appear before the general
Jurisdiction can be exercised, and since,
generally, that class is interdicted. he
can only escape the common lot upon
it's appearing that he ie not within the
general condemnation. The means of
showing this are presumably in his own
control. 1t would be extremely incoH-
yenient, and probably in most instances
impracticable for the government to
bring proof of the negative fact that the
respondent is not within the exemption.
Such circumstances are the basis of the
rule of evidence which devolves the bur-
den upon the party who presumably has
the best means OF proving the fact. But,
whatever the rule which by com mon law
would be applicable to trials, it cannot
be affirmed that in such conditions the
legislature cannot prescribe such rule
OF evidence"
That the expulsion from this co untry
of foreigner who came into 1t contrary
is not subiecting him to prosecution or
Uuuleuu04b 1Oi CiAuAS, 10 CiOoAs IL Viz
late case of Fong Yue Ting VS.. United
court held that the subsequent expul-
sion of Chinese who came into the coun-
try by invitation OF our government, is
not the prosecution or punishment OF
such persons for crime committed. A
fortiori, the expulsion of such foreigners
as entered the country contrary to and
T. Al ~ 10 io ~ tn
cute or punish them for crime commit
ted. 1t results, l think, that the con-
etitutional, statutory and common law
inal prosecutions have no application to
the mere expulsion or deportation ofsuch
Chinese persons as came here contrary
10 and in violation of the laws of the
United States.
But it by no means follows that the
political right of the government to ex-
pei such persons embraces the right to
confne them at hard labor in peniten-
prisonment of a human being at hard
labor in penitentiary is not punish
ment, it is difficult to understand how
anything short of the infiiction OF the
death penalty is. 1t is not only punish
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character, which, under the provisions
of the constitution of the United States.
can only be inflicted upon person after
his due conviction of crime pursuant to
the forms and provisions of law, "Infa-
nous punishments," said the supreme
court in ex parte Wilson, ia, U. s., 426.
"cannot be limited to those punish
ments which are cruel or unusual; be-
cause, by the seventh amendment OF
the constitution, cruel and unusual
punishments' are wholly forbidden, and
cannot therefore be lawfully inflicted
even in cases of convictions upon indict.
ments duly presented by the grand
jury.
siBy the first crimes act Of the United
States, forgery OF public securities, or
knowingly uttering forged public securi-
ties with intent to defraud, as we'll az
treason, murder, piracy. mutiny, rob.
berv, or rescue of person convicted oil
a capital crime, was punishable with
death; most other offenses were pun
ished by fine or imprisonment; whip.
ping was part of the punishment OF
stealing or falsifying records, fraudu-
lently acknowledging bail, lar
ceny of goods, or receiving
stolen goods; disqualification to
hold Office was part OF
the punishment of bribery; and those
convicted of perjury or subornation Of
perjury, besides being fined and impris-
oned, were to stand in the pillory for one
hour, and rendered incapable OF testify