The Helena independent. [volume] (Helena, Mont.) 1875-1943, 1893-05-17
Tue DISSENTING OPINIONS
Reasons Of Justices Field and
Brewer, Holding the Gsary Law
Unconstitutional.
Power to Deport Friendly Aliens
Held to Be Dangerous and
Despotio.
Department Said to He Punish m emit, Un-
usual and Sovere-Subjeos to Laws
Entitled to Protection.

WASHINGTON. May 16.-Justics Field de-
livsred the principal dissenting opinion IL
the Chinese CASE. He said: 1.-The power O.
the government to exclude foreigners ZION
this country, that is, to prevent them from
entering it, whenever public interests, in
its Judgment, require such exclusion, hal
been repeatedly asserted By the legislative
departments; but deportation from the
country Of persons lawfully domiciled
therein by permission OF the governments,
engaged in Tho ordinary pursuits of HE,
never has been asserted by the government
since its foundation. except for crime. o,
Ms an act of war, in view Of existing or an
ticipsting hostilities, unless the alien act OF
1898 can be considered ns recognizing that
doctrine.
'In no i~nstancs. until the law before rs
was passed, has any public man had the
boldness to advocate the department Of
friendly aliens in time Of peace. l repeat
the statement, in no other instance has the
department of + iendly aliens been ndvo-
Gated as a lawful measure by any depart
ment of this government. And it will sur
p Use most people to learn that any such
dangerous and despotio power lies in our
government which will autho:ize it to expel
at pleasure, in times of peace, O whole body
of friendly foreigners Of any county eomi-
ciled herein by its permission.
us it possible congress can, ut its pleas
ure, e1pel at any time Irish, German.
French and English people who may have
taken up their residence here on invitation
of the government. in disregard Of the
- IonsrIno, ~ o,Y nv AhA
ground that they have not been natural
lied? The moment any human being comes
in with the consent of the government, and
such consent will always be implied when
not expressly withheld, and in case OF the
Chinese labo.ers before US was in terms
given by the treaty, he becomes subject to
all their laws and amenable to their pun
ishment. and is entitled to their protection.
Arbitrary aud despotic authority can
no more be exercised over them, with ref
erence to persons and pro- e.ty. than over
citizens. They differ only from citizens in
that respect that they cannot vote or hold
any public offices. As men having our COM
mon humanity they are protected by all the
guarantees of the constitution. To hold
that they are subject to any different laws.
or are less protected in any particular, is,
in my Judgment. against the teachings of
our history, the practice of our government,
and the language of our legislation.
II utterly dissent from and reject the
doctrine and opinion of the majority that
congress might have directed any Chinese
laborer found within the United States
without n certificate of residence to be re-
moved out of the country without judicial
trial or examination. just as it might have
authorized such officers absolutely to pre-
vent their entrance into the country.
i would be brutal and oppressive:
Is only consistent with the admission
that the government Ia one Of unlimited
and despotio power as far as aliens domi-
ciled in tho country are concerned. ut
terly% repudiate all such notion and reply
that brutality, inhumanity or oruely are
not elements in any procedure for tine en-
forcement of any law of the United
States. Tho punishment is beyond reason
in its severity. 1t is out of all propo; ton
TO the alleged ofense. II is cruel and IN
usual, and l will not pulsue the subject fui-
Their.
tion it would give to legislation depriving
resident aliens of the guarantees of the
constitution fills me with apprehension.
Those guarantees are OF priceless value to
every one resident OF the country, either
citizen or alien. l cannot but regard the
decision as a blow against constitutional
liberty when 1t declares that congress has
the right to disregard the guarantees Of the
constitution, intended for tho proteotion of
all men domiciied in the country. with the
consent of the government, in their rights
of person and property. / am of the opin-
ion that the order OF the court below
should DO reversed and the petitioners dis
charged"
Justice Brewer dissented from the opinion
of tho court. His opinion was We bal one.
and at its conclusion he notified the court
that he would prepare an extended written
opinion on tho subject which would be filed
in the records of the case. He said the
fourteenth amendment could not be con-
strued AS being entirely confined to the
protection of citizens Of the United States.
Abe provisions applied IT, oil people living
in the jurisdiction of the United States. He
defined the meaning of the use of the word
persons" in the fifth amendment, which,
be said. must be equally comprehensive.
80 also must be the sixth amendment. In
his opinion there was no question regarding
the general power of the government to
enact laws keeping people out of the
United States, or to summary deal with
persona who unlawfnlly came in. However,
this act dealt with persons who wsro law
fully in the United States. 1t Is not posi-
bic any law can be put into effect that shall
take property from people within our Dor
doris for which compensation is not given.
1t is hut fair to say deportation ia pun
ishment. 1t is the deprivation of liberty
tcA hodAc iaIiAiJt UltblEl6BS
and property. This cRn be considered
nothing less than punishment of the Be.
velest nature. Justice Brewer held that if
a man had been born, brought up and ca
tablished here he can be seized and driven
from the country under the provisions of
the Gsary act.
lie insisted that the powers conferred on
the collector were surely not such as to
constitute due process of law. Justice
Bower did not believe the provisions of
the Gsary law made just provision in refer
ence to bringing unregistered Chinese be-
fore proper judges, with due respect to
limitations as to their power, and for these
reasons declared himself unequivocally
against the law.
The Arizona Canes A.nin Sighted.
Ecninmin u. LaHer nal A Partnr;a