The Salt Lake herald. [volume] (Salt Lake City [Utah]) 1870-1909, 1893-05-16

foundation except from crime, of war
in view OF existing or anticipating
hostilities until the act of 1898
can be considered as recognizing that
doctrine and in no other instance until
the law before the United States was
passed has any public man had the bold
ness to advocate the department OF
friendly aliens in time of peace.
l repeat the statement that in no other
instance has the department of friendly
aliens been advocated as a lawful measure
by any department. of our government
and it will surprise most people
to learn that any such dangerous and
desperate power lies in our government
which will authorize it to expel at pleas
ure, in times of peace, a whole body OF
friendly foreigners of any country
domiciled herein by its permission.
Is it possible that Congress can at pleas
ure expel at any time the Irish, German,
French and English people who may
have taken up their residence here on in
vitation of the government in disregard
of the guarantees of legislation, simply
on the ground that they have not been
naturalized. The moment any human
being comes within the consent
OF the government, and such
consent will always be implied
when not expressly withheld, and
in the case of Chinese laborers before the
United States was in terms given by
treaty, he becomes subject to all their
laws and amenable to their punishment
and entitled to their protection. Arbitrary
and despotic authority can no more be
exercised over them with reference to per-
sons and property than over persons and
property OF native born citizens.
They differ entirely from citizens in
that respect that they cannot vote or hold
any public Office, but are men having
our common humanity. They are pro-
tected by all guarantees of the constitu-
ton. To hold that they are subject to
any different laws or are less protected in
any particular is, in my judgment, not
in accord with the teachings of our his
tory, practice of our government and
language of our legislation -
| 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 certificate of residence to be re-
moved out of the country without judicial
trial or examination, just as it
might authorize such officers alb
solutely to prevent their entrance
into the country. 1t would be a brutal
and oppressive existence of power. This
it is stated, is only consistent with the
admission that the government is one of
unlimited and despotic power so far as
aliens domiciled in this country are con-
cerned. [ utterly repudlate all such ac-
ity in humanity or cruelty
are not elements in any procedure for
the enforcement of the laws of the United
States. The punishment is beyond rea-
son in its severity. 1t is out of all pro-
portion to the alleged offense. 1t is cruel
and unusual and l will not pursue the
subject further.
The decision of the court and the
sanction it would give to legisla-
guarantees OF the constitution fills me
with apprehensions. Those guarantees
are of priceless value to everyone resi-
dent of this country, either citizen or
alien.
81 cannot but regard the decision
as blow against constitutional
liberty when it declares that Congress has
right to disregard the guarantees of the
constitution intended for the protection
the consent of government in their rights
of person and property. l am OF opinion
| that the order of the court below should
be reversed and the petitioners discharged.
| Chief Justice Fuller also dissented from
| the opinion of the court. In his dissent
| ing opinion the chief justice denied the
soundness of the proposition OF the cases
| OoIOr6 OQ6 COuIb were SuCu dS bHC pOllblCdl
department of the government alone could
deal with. 1t was, in his view, judicial
question, and however reluctant courts
may be to pass on the constitutionality of
| legislative acts, it was the very essence of
| judicial duty to do so when the discharge
of that duty was properly imposed
upon it.
He entertained no doubt that the pro-
visions of the fifth and fourteenth amend
ments were universal in their application,
and while the general government was in
vested so far as foreign countries are con-
cerned, with all powers necessary to the
maintenance of its absolute independence
and security, il could not in virtue OF the
supposed inherent sovereignty abso-
| lutely deal with persons lawfully and
peacefully within its domain.
The act before the court was not an act
to abrogate or repeal treaty, nor to ex-
pei the Cinnamon lawfully here, and no
| such intent could be imputed to Congress.
| Its object was to prescribe method of
registration and deportation denounced
| by way of punishment was, in his view :,
| an unusual punishment and not author
lied by the constitution.
| After the court concluded the announce
ment of the opinion, Ashton, of counsel
for TIE Chinese, moved a rehearing and
argument before the full bench at the
next term. At present the court stands
five to three in support of the law. JUS
tice Harlan being absent, the court took
the motion under advisement, the effect
of which Is to postpone the proceedings
under the judgment announced today.