The morning call., 1893-09-12

wees. " ''''
General John T. Carey ana S. w. Fox argued
IoI the issuance nt the warrants and the United
oiates District Attorney, Mr.. Garter, against.
IheIe is no issue on the main prorosition-
that Is, the power OF a Federal Judge under
section . TO Initiate proceeding and issue
warrant on complaint OF a private ciIiZen.
Ihe District Attorney comedies that the
power exists. He has. no doubt, carefully CON
siaered the matter, and presum bly, his conces-
ION Is win the concurrence of the Attorney
General OF the United States who no doubt
mas also considered lie matter
ne power and the duty were also decided TO
exist oV Judge Ross OF the southern district
who Is learned ana careful Judge.
In re Chow G.o Pool, on u beas corpus
uweniy-hfih Federal Reporter 10, section 8
OF the aet OF 1882, which TrUyided Tor deporta-
lion OF chinese found unlawfuly In The United
States, received construction by Judges Saw
yer HOFFMAN and Sabln. The act did MOI make
tDe lac OF being IN The United States a crime
put new rtheless the deportation OF The laborer
oy the President was required As a duty
ne section provides as follows: That any
chinese person found unlawfully within The
United States shall be caused 10 be removed
lnefeIfom 10 The country from whence ne came
oy direction OF The President OF the United
states, ana at the cost of the United States
after being brought before some Justice Judge
or commissioner of court OF the Unite ed States
ana found be one not lawfully entitled 10 be
or remain In the United States"
Judge Hoffman, commenting on this section.
says; III Will be observ d That this section Is
very vague anu inexplcIt. II cOnfers no power,
In terms, on the Justice Judge or Commits sioEer
10 cause the person 20 be brought before him.
Ii provides no process by which that obIecI can
De enecieo, nor does II Indicate in any way
what shall be done by the Justice Judge or
commissioner In case lie shall d. teTmine that
the person brought before HIM is not entitled TO
pc or remain In he United States. But The OBJ
lect OF the section Is apparent. aud however in
explicit ami InGefnit- the language is we feel
called upon TO effectuate the uumistakabIe in.
sentlon Oh me act II we eau, by construction, in
i ie ana application. hnd warrant in ths
language OF the act Tor doing so. We are of
opinion tnat. lnasmuch as The Presidents action
is conditioned on the previous nnding by
Justice, Judge or ComnisSio that the ner.
son Is not lawfully entitled TO be In the United
ates, The power is implicitly conf Tred on the
justice Judge or Commissioners TO cause the
man TO be brought before him In order that
lhat Let may be Determined; and, further, that
IL also confers," etc.
There are differences between this section
and section OF the GeaTy act, bur In both
! mere IS union OF function OF the executive
and the judiciary, and the intent of both Sec
lions Is the same, to viii, the deportation Of
Chinese laborers unlawfuly In the United
states, and that by sentence OF a judicial Off.
| Ger. His Judgment under both Is the essential
| condition. All else was but means to secure
| u, ana IL might be considered somewhat mar
| row construction 10 make his power depend
alone on the omission or specification OF an
| officer or officers, whose duty IL might be to
take Inc OFFENDING laborer before him.
| We. however. have considerable doubts il
under section 6 Federal Judge has power
/ Independent Of The executive, ara not Invoked
| DY II. but we do not feel like opposing doubts
| 10 the authority OF Judge Ross decision,
and the case OF Chow Goo Pool. though some,
what unprecise, is supported by the concessions
OF the District Attorney. representing The ex-
| ecutive, the matter regarding the Chinese
| labOTer alone being one of procedure ONLY In
vovng no substantial right OF his Indeed, a
warrant OF arrest issued by Judge has a
| higher sanction than a general aud uure-
strained discretion TO many officers. An arrest
| Tor the most serious Offense known TO the law
has no higher sanction. Looking beyond the
| procedure and to the purposes OF tile act and
Its various provisions, many consde ratIons
arse. ana many also arise from the case of
rong ane ling vs. The United States Q49
| U. D. 69S), lately decided by the supreme
| Court, which initiate with the construction
| given TO section by petitioners counsel and
conceded by the District Attorney. 1t is not
necessary 10 reclle these considerations. We
/ only mention tne fact OF their existence 10 ac-
/ count for our doubts.
! We think IL Is we'll to observe I'm passing
tnat under the fugitive slave law language not
! diSsimllar or not very dissmilar, to that which
| Is concerned in section was held 10 preclude
the power OF the Judge from issuing the war.
rant in the first instance
UndeF the fugitive slave laws which auth Or
lie The owner VI "A fugitive from service escaping
4 from one State into another. or his agent To
seiSe MN ana 10 take him before any Federal
| or Stale Judge or magistrate OF the county
| where the seizure Is made, and upon proof to
| the satisfaction OF such Judge or magistrate
mat the person seized owed service or labor TO
Inc Judge 10 give certificate TO that effect,
| when Is suinclent warrant for removing the
| fugitive TO the State from whence he fed.
IL was held that this ACT conferred only a
| limited power on the magistrate aud that he
| had no power to issue warrant 40 apprehend
| the fugitive in the first place. The commence
ment aud termination of his duty was 10 exam
| Inc into The claim of the owner
| Wortbingion W.. Preston q Wash, &C, 463).
In the matter OF Martin q FaIne's G. C.. 35O).
Ii Is commended by the District Attorney, how
ever, while we have the power TO issue a war
rant IL Is discretionary one, aud we should
| be restrained by suggestions OF the law depart.
ment OF the difficulty or imposslbility OF exc.
cutting sentence.
| 1t may be so. but the impOssbility must be
shown. TX we are charged with q duty under
! The law It Is duly TO be exercised ana we
| should not deter or stop or refuse t for any
| thing short of practical mpossibility.
We do not think such impossihility has been
shown. The statement of the Attorney G en-
| eral does not show that there are no funds :