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Dissenting Opinion : Fuller, C. J.

How far will its legislation go? The unnaturalized resident feels it to-day, but if Congress can disregard the guaranties with respect to any one domiciled in this country with its consent, it may disregard the guaranties with respect to naturalized citizens. What assurance have we that it may not declare that naturalized citizens of a particular country cannot remain in the United States after a certain day, unless they have in their possession a certificate that they are of good moral character and attached to the principles of our Constitution, which certificate they must obtain from a collector of internal revenue upon the testimony of at least one competent witness of a class or nationality to be designated by the government?

What answer could the naturalized citizen in that case make to his arrest for deportation, which cannot be urged in behalf of the Chinese laborers of to-day?

I am of the opinion that the orders of the court below should be reversed, and the petitioners should be discharged.


I also dissent from the opinion and judgment of the court in these cases.

If the protection of the Constitution extends to Chinese laborers who are lawfully within and entitled to remain in the United States under previous treaties and laws, then the question whether this act of Congress so far as it relates to them is in conflict with that instrument, is a judicial question, and its determination belongs to the judicial department.

However reluctant courts may be to pass upon the constitutionality of legislative acts, it is of the very essence of judicial duty to do so when the discharge of that duty is properly invoked.

I entertain no doubt that the provisions of the Fifth and Fourteenth Amendments, which forbid that any person shall be deprived of life, liberty, or property without due process of law, are in the language of Mr. Justice Matthews, already quoted by my brother Brewer, “universal in their application to all persons within the territorial jurisdiction, without

Dissenting Opinion : Fuller, C. J.

regard to any differences of race, of color, or of nationality,” and although in Yick Wo's case only the validity of a municipal ordinance was involved, the rule laid down as much applies to Congress under the Fifth Amendment as to the States under the Fourteenth. The right to remain in the United States, in the enjoyment of all the rights, privileges, immunities, and exemptions accorded to the citizens and subjects of the most favored nation, is a valuable right, and certainly a right which cannot be taken away without taking away the liberty of its possessor. This cannot be done by mere legislation.

The argument is that friendly aliens, who have lawfully acquired a domicil in this country, are entitled to avail themselves of the safeguards of the Constitution only while permitted to remain, and that the power to expel them and the manner of its exercise are unaffected by that instrument. It is difficult to see how this can be so in view of the operation of the power upon the existing rights of individuals; and to say that the residence of the alien, when invited and secured by treaties and laws, is held in subordination to the exertion against him, as an alien, of the absolute and unqualified power asserted, is to import a condition not recognized by the fundamental law. Conceding that the exercise of the power to exclude is committed to the political department, and that the denial of entrance is not necessarily the subject of judicial cognizance, the exercise of the power to expel, the manner in which the right to remain may be terminated, rest on different ground, since limitations exist or are imposed upon the deprivation of that which has been lawfully acquired. And while the general government is invested, in respect of foreign countries and their subjects or citizens, with the powers necessary to the maintenance of its absolute independence and security throughout its entire territory, it cannot, in virtue of any delegated power, or power implied therefrom, or of a supposed inherent sovereignty, arbitrarily deal with persons lawfully within the peace of its dominion. But the act before us is not an act to abrogate or repeal treaties or laws in respect of Chinese laborers entitled to remain in the United States, or

Dissenting Opinion: Fuller, C. J.

to expel them from the country, and no such intent can be imputed to Congress. As to them, registration for the purpose of identification is required, and the deportation denounced for failure to do so is by way of punishment to coerce compliance with that requisition. No euphuism can disguise the character of the act in this regard. It directs the performance of a judicial function in a particular way, and inflicts punishment without a judicial trial. It is, in effect, a legislative sentence of banishment, and, as such, absolutely void. Moreover, it contains within it the germs of the assertion of an unlimited and arbitrary power, in general, incompatible with the immutable principles of justice, inconsistent with the nature of our government, and in conflict with the written Constitution by which that government was created and those principles secured.

Cases not otherwise Reported.


No. 114. ALTENOWER v. CHURCHILL. Appeal from the Circuit Court of the United States for the Eastern District of Louisiana. July 14, 1892: Dismissed, pursuant to the 28th rule. Mr. J. P. Hornor for appellant. Mr. J. McConnell for appellees.

No. 15. Original. In re AMERICAN CONSTRUCTION COMPANY, Petitioner. Petition for writ of mandamus or certiorari. April 3, 1893: Petition dismissed, on motion of Mr. William A. Hornblower for the petitioner. Mr William B. Hornblower, Mr. William Pennington and Mr. E. Stevenson for the petitioner. Mr. John G. Johnson, Mr. C. M. Cooper, and Mr. J. C. Cooper and Mr. Thomas Thacher opposing.

No. 209. AMOSKEAG NATIONAL BANK v. FAIRBANKS. Appeal from the Circuit Court of the United States for the District of New Hampshire. December 20, 1892: Decree reversed, with costs, per stipulation, and cause remanded for further proceedings in conformity with law. Mr. T. L. Livermore and Mr. F. P. Fish for appellants. Mr. H. G. Wood for appellee.


Appeal from the Circuit Court of the United States for the Eastern District of Arkansas. April 11, 1893: Dismissed, per stipulation. Mr. Morris M. Cohn for appellant. Mr. John S. Duffie for appellees.

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