Fong Yue Ting v. United States

Mr. Justice Field

dissenting. 1

I also wish to say a few words upon these casés and upon the extraordinary doctrines announced in support of the . orders of the court below.

*745 With the treaties between the United States and China, and the subsequent legislation adopted by Congress to prevent the immigration of Chinese laborers into this country, resulting in the Exclusion Act of October 1, 1888, the court is familiar. They have often been before us and have been considered in almost every phase. The act of 1888 declared that after its passage it should be unlawful for any Chinese laborer who might then or thereafter be a resident of the United States, who should depart therefrom and not return before the passage of the act — to return or remain in the United States. The validity of this act was sustained by this court. 130 U. S. 581 . In the opinion announcing the decision we considered the treaties with China, and also the legislation of Congress and the causes which led to its enactment. The court cited numerous instances in which statesmen and jurists of eminence had held that it was the undoubted right of every independent nation to exclude foreigners from its limits whenever in its judgment the public interests demanded such exclusion.

“The power of exclusion of foreigners,” said the court, “ being an incident of sovereignty belonging to the government of the United States as a part of those sovereign powers delegated by the Constitution, the right to its exercise at any time when, in the judgment of the government the interests of the country require it, cannot be granted away or restrained on behalf of any one. The powers of government are delegated in trust to the United States and are incapable of transfer to any other parties. They cannot • be abandoned or surrendered. Nor can their exercise be hampered, \yhen needed for the public good, by any considerations of private interest. The exercise of these public trusts is not the subject' of barter or contract. Whatever license, therefore, Chinese laborers may have obtained previous to the act of October 1, 1888, to return to the United States after their departure, is held at the will of the government, revocable at .any time at its pleasure. Whether a proper consideration by our government of its previous laws, or a proper respect for the nation whose subjects are affected by its action, ought to have qualified its inhibition and made it applicable only to *746 persons departing from the country after the passage of the act, are not questions for judicial determination. If there be any just ground of complaint on the part of China it must be made to -the political department of our government, which is alone competent to act upon the subject.” p. 609.

.1 had the honor to be the organ of the court in announcing this opinion and judgment. I still adhere to the views there expressed in all particulars; but between legislation for the exclusion of Chinese persons — that is, to prevent them from entering the country—and legislation for the deportation of those-who have acquired a residence in the country under a treaty with China, there is a .wide and' essential difference. The power of the government,to exclude foreigners from this country, that.‘is, to prevent them from entering it, whenever the public interests in its judgment require such exclusion, has been repeatedly asserted by.the .legislative and executive departments of our government and never denied; but its power to deport from the country persons lawfully domiciled therein by its consent, and engaged in the ordinary pursuits of life, has never been asserted by the legislative or executive departments except for crime, or as an .act of war in view of existing or anticipated hostilities, -unless the alien act of June 25, Í798, can be considered as recognizing that doctrine. 1 Stat. 570 , c. 58. That act vested in the President power to order all such aliens as he should adjudge dangerous to the peace and safety of the United States, or should have reasonable grounds to suspect were concerned in any treasonable or secret machinations .against the government, to depart out of' the territory of the United States within such time as should be expressed in his order. And in case any alien when thus ordered to depart should be found at large within the United States after the term limited, in the order, not having obtained a license from the President to. reside therein, or having obtained such license should not have conformed -thereto, he should on conviction thereof be imprisoned for a term not exceeding three years, and should never afterwards be admitted to become a citizen of the United States ; with a proviso that if the alien thus ordered to’ depart should prove to the satis *747 faction of the President, by evidence to be taken before such person or persons as he should direct, that no injury or danger to the United States would arise from suffering him to reside therein, the President might grant a license to him to remain within the United States for such time as he should judge proper and at such place as he should designate. The act also provided that the President might require such alien to enter into a bond to the United States in such penal sum as he might direct, with one or more sureties to the satisfaction of the person authorized by the President to take the same, conditioned for his good behavior during his residence in the United States, and not to violate his license, which thé President might revoke whenever he -should think proper. The act also provided that it should be lawful for the President, whenever he deemed it necessary for the public safety, to order to be removed out of the territory of the United States any alien in prison in pursuance of the act, and to cause to be arrested and sent out of the United States such aliens as may have been ordered to depart, and had not obtained a license, in all cases where, in the opinion of the President, the public safety required a speedy removal. And that if any alien thus removed or sent out of the United States should voluntarily return, unless by permission of the President, such alien, being convicted thereof, should be imprisoned so long as in the opinion of the President the public safety might require.

The passage of this act produced great excitement throughout the country and was severely denounced by many of its ablest statesmen and jurists as unconstitutional and barbarous, and among them may be mentioned the great names of Jefferson and Madison, who are throughout our country honored and revered for their lifelong devotion to principles of constitutional liberty. It was defended by' its advocates as-a war measure. John Adams, the President of the United States at the time, who approved the bill and against whom the responsibility for its passage was charged, states in his correspondence that the bill was intended as a measure of that character. 9 John Adams’s "Works, 291. The State of Virginia denounced it in severe terms. Its general assembly *748 passed resolutions upon the act and another act of the same session of Congress known as the “ sedition act.” Upon the first — the alien act—one of the resolutions declared that it exercised a power nowhere delegated to the Federal government, and which, by uniting legislative and judicial, powers to those of executive,, sub verted the general principles of free government as well as the particular organization and positive provisions of the Federal Constitution. 4 Elliot’s Deb. 528. The resolutions upon both acts were transmitted to the legislatures of different States, and their communications in answer to them were referred to a committee of the general assembly of Yirginia, of which Mr. Madison was a member, and upon them his celebráted report was made. With reference to the alien act, after observing that it was incumbent in this, as in every other exercise of power by the Federal government, to prove from the Constitution that it granted the particular power exercised; and also that' much confusion and fallacy had been'thrown into.the question to be considered by blending the two cases of aliens, members of a hostile nation, mid aliens, members of friendVy-. nations, he said: “ With respect to alien enemies, no doubt has been intimated as to the Federal authority over them; the Constitution having expressly • delegated to Congress the power to declare war against any nation, and, of course, to treat it and all its members as enemies. With respect to aliens , who are not enemies, but members of nations in peace and amity with the United States, the power assumed by the act of Congress is denied to be constitutional; and it is accordingly against this act that the protest of the general assembly is expressly and exclusively directed.” 4 Elliot’s Deb. 554.

“ Were it admitted, as is contended, that the ‘ act concerning aliens ’ has for its object, not a penal, but a preventive justice, it would still remain to be proved that it comes within the constitutional power of tb,e Federal legislature; and, if within its power, that the legislature has exercised it in a constitutional manner. . . .- It can. never be admitted that the removal of aliens,' authorized by the act, is to be considered, not as punishment for-an offence, but as a measure of *749 precaution.. and prevention. If . the banishment of an alien-from a country into which he has been invited as the asylum most auspicious to his happiness — a country where he may have formed the most tender connections ; where he may have-, invested his entire property, and acquired property of the real, and permanent as well as the movable and temporary kind ;; where he enjoys, under the laws, a greater share of the blessings of personal security and personal liberty, than he-can elsewhere hope for; . . . if a banishment of this, sort be not a punishment, and among the severest of punishments, it would be difficult to imagine a doom to which the name can be applied. And, if it be a punishment, it will remain to be inquired whether it can be constitutionally inflicted, on mere suspicion, by the single will of the executive magistrate, on persons convicted of no personal offence against the laws of the land, nor involved in any offence against the law of nations, charged on the foreign state of which they are members.” 4 Elliot’s Deb. 554, 555. . . It does not follow, because aliens are not parties to the Constitution, as citizens are parties to it, that, whilst they actually conform to it, they have no right to its protection. Aliens are not more parties to the laws than they are parties, to the Constitution; yet it will not be disputed that, as they owe, on one hand, a temporary obedience, they are entitled,, in return, to their protection and- advantage.

If aliens had no rights under the Constitution, they might, not only be banished, but even capitally punished without' a jury or the other incidents to a fair trial. Eut, so far has a . contrary principle been carried, in every part of the United States, that, except on charges of treason, an alien has,, besides all the common privileges, the special one of being tried by a jury of which one-half may be also aliens.

“ It is said, further, that, by the law and practice of nations,, aliens may be removed, at discretion, for offences against the-law of nations; that Congress -is authorized to define and punish such offences; and that to be dangerous to the peace of society is, in aliens, one of those offences.

“ The distinction between alien enemies and alien- friends is *750 a clear and, conclusive answer to this argument. Alien enemies are under the law of nations, and liable to be punished for offences against it. Alien friends, except in the single case of public ministers, are under the municipal law, and must be tried and punished according to that law only.” 4 Elliot’s Deb. 556. Massachusetts, evidently considering the alien act as a war measure, adopted in anticipation of probable hostilities, said, in answer to- the resolutions of "Virginia, among other things, that “ the removal of aliens is the usual preliminary of hostility, and is justified by the invariable usages of nations. Actual hostility had, unhappily, been long experienced, and a formal declaration of it the government had reason daily to expect.” 4 Elliot’s Deb. 535.

The duration of the act was limited to two years, and it has ever since been the subject of universal condemnation. In no other instance, until the law-before us was passed, has any. public man had the boldness to advocate the deportation of friendly aliens in time óf peace. I repeat the statement, that in no other instance has the deportation 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 despotic power lies in our. government— a power which will authorize it to expel at pleasure, in time of .peace, the whole body of friendly foreigners of any country domiciled herein by its permission, a power which can be brought into exercise whenever it may suit the pleasure of Congress, and be enforced without regard to the guarantees of the Constitution intended for the protection of the rights of all persons in their liberty and property. Is. it possible that Congress can, at its pleasure, in disregard of the guarantees of the Constitution, expel at any time the Irish, German,'.French, and English who may have taken up their residence here on the invitation of the government, wHile we are at -peace with the countries from which they came, simply on the ground that they have not been naturalized ? .

Notwithstanding the activity of the public authorities in enforcing the exclusion act o.f 1888, it was constantly evaded. *751 Chinese laborers came into the country'by water and by land; they came through the open ports and by rivers reaching the seas, and they came by way of the Canadas and Mexico. New means of ingress were discovered, and in spite of the vigilance of the police and customs officers great numbers clandestinely found their way into the country. Their resemblance to each other rendered it difficult, and often impossible, to prevent this evasion of the laws. It was under these circumstances that the act of May 5, 1892, c. 60, was passed. It had two objects in view. There were two classes of Chinese persons in the country, those who had evaded the laws excluding them and entered clandestinely, and those who had entered lawfully and resided therein under the treaty with China.

The act of 1892 extended, for the period of ten years from its passage, all laws then in force prohibiting and regulating the coming into the country of Chinese persons, or persons of Chinese descent; and it provided that any person,- when convicted or adjudged under any of those laws of not legally being or remaining in the United States, -should be removed therefrom to China, or to such other country as it might appear he was a subject of, unless such other country should demand' a tax as a .condition of his removal thereto, in which-case he should be removed to China. The act also provided that a Chinese person arrested under its provisions, or the provisions of the acts extended,- should be adjudged to be unlawfully within th.e United States, unless he should establish by affirmative proof his lawful right to remain within the United States; and that any Chinese person, or person of Chinese descent, “convicted and adjudged not lawfully entitled to be or remain in the United States, should be imprisoned at hard labor for a period not exceeding one year, and thereafter removed from the United States.” ’With this class of Chinese, and with the provisions of law applicable to them, we have no concern ..in the present case... We'have only to consider the provisions .of the- act applicable to the second-class of Chinese persons, those who had a lawful right "to remain in the United States. ' By the additional articles to the *752 treaty of 1858, adopted in 1868, generally called the Burlingame treaty, the governments of the two countries recognized “the inherent and inalienable right of man to change his-home and allegiance, and also the mutual advantage of free migration and emigration of their citizens and subjects, respectively, from the one country to the other for purposes of curiosity, of trade, or as permanent residence; ” and accordingly the treaty in the additional articles provided that citizens-of the United States visiting or residing in China, and Chinese subjects visiting or residing in the United States, should reciprocally enjoy the same privileges, immunities, and exemptions in respect to travel or residence as should be enjoyed by citizens or subjects of the most favored nation, in the country in which they should, respectively, be visiting or residing. 16-Stat. 739, 740.' The supplemental treaty' of November 17,. 1880, providing for the limitation or suspension of the emigrar tion of Chinese laborers, declared that “the limitation or suspension shall be reasonable and apply only to Chinese who-may go to the United States as laborers, other -classes not-being included in the'limitation,” and that “Chinese subjects, whether residing in the United States as teachers," students, merchants, or from curiosity, together with their body and household servants, and Chinese laborers who were then in the United States, shall be allowed to go and come of their own free will and accord, and shall be accorded all rights, privileges, immunities, and exemptions, which are accorded to-the citizens and subjects of the most favored nation.”

•There are many thousands of Chinese laborers who came to-the country and resided in it under, the additional articles of the treaty adopted in 1868, and were in the country at the-time of the adoption of the supplemental treaty of November, 1880. To these laborers thus lawfully withiu the limits of the United States section six of the act of May 5, 1892, relates. That section, so far as applicable to' the present cases, is as follows:

“ Sec. 6. And it shall be the duty of all Chinese laborers-within- the limits of the United States at the time of the passage .of this act and who are entitled, to remain in thee *753 United States, to apply to the collector of internal revenue of their respective districts, within one year after the passage of this act, for a certificate of residence, and any Chinese laborer within the United States, who shall neglect, fail or refuse to comply with the provisions of this act, or who, after one year from the passage hereof, shall be found within the jurisdiction of the United States without such certificate of residence, shall be deemed and adjudged to be unlawfully within the United States, and may be arrested by any United States customs official, collector of internal revenue or his deputies, United States marshal or his deputies, and taken before a United States jtidge, whose duty it shall be to order that he be deported from the United States, as hereinbefore provided, unless he shall establish clearly to the satisfaction of the said judge that by reason of accident, sickness or other unavoidable cause, he has been unable to procure his certificate, and to the satisfaction of the court, and by at least one credible white-witness, that he was a resident of the United States at the time of the passage of this act; and if upon the hearing it shall appear that he is so entitled to a certificate, it shall be granted upon his paying the cost. Should it appear that said Chinaman had procured a certificate which has been lost or destroyed, he shall be detained and judgment suspended a reasonable time to enable him to procure a duplicate from the officer granting it, and in such cases the cost of said arrest and trial shall be in the discretion of the court.”

The purpose of this section was to secure the means of readily identifying the Chinese laborers present in the country and entitled to remain, from those who may have clandestinely entered the country in violation of its laws. Those entitled to remain, by having a certificate of their identification, would enable the officers of the government to readily discover and bring to punishment those not entitled to enter but who are excluded. To procure such a certificate was not a hardship to the laborers, but a means to secure full protection to them, and at the same time prevent an evasion of the law.

This object being constitutional, the only question for our *754 .consideration is the lawfulness of the procedure provided for its accomplishment, and this must he tested by the provisions of the Constitution and laws intended for the protection of all persons against encroachment upon their rights. Aliens from countries at peace with us, domiciled within our country by its consent, are entitled to all the guaranties for the protection of their persons and property which are secured to native-born citizens. The moment any human being from a country at peace with us comes within the jurisdiction of the United States, with their consent — and such consent will always be implied when-' not expressly withheld, and in the case of the Chinese laborers before us was in terms given by the treaty referred to — he becomes subject to all their laws, is amenable to their punishment and entitled to their protection. Arbitrary and despotic power can no more be exercised over them with reference to their persons and property, than over the persons and property of native-born citizens. They differ only from citizens in that they cannot vote or hold any public office. As men having our common humanity, they are protected by all the guaranties of the Constitution. To hold that they are subject to any different law or are less protected,in any particular than other persons, is in my judgment to ignore the teachings of our history, the practice of our government, and the language of our Constitu-. tion. Let us test this doctrine by an illustration. If a foreigner who resides in the country by its consent commits a public offence, is he subject to be cut down, maltreated, imprisoned, or put to death by violehce, without accusation made, trial had, and judgment of an established tribunal following the regular forms of judicial procedure? If any rule in the administration of justice is to be omitted or discarded in his cáse, what rule is it to be ? If one rule may lawfully be laid aside in his case, another rule may also be laid aside, and all rules may be discarded. In such instances a rule of evidence may be set aside in one case, a rule of pleading in another; the testimony of eye-witnesses may be rejected and hearsay adopted, or no evidence at all may be received, but simply an inspection of the accused, as is often *755 the case in tribunals of Asiatic countries where personal caprice and not settled rules prevail. That would be to establish a pure, simple, undisguised despotism and tyranny with respect to foreigners resident in the country by its consent, and such an exercise of power is not permissible under our Constitution. Arbitrary and tyrannical power has no place in our system. As said by this court, speaking by Mr. Justice Matthews, in Yick Wo v. Hopkins, 118 U. S. 356 , 369: When we consider the nature and theory of our institutions of government, the principles upon which they are supposed to rest, and view the history of their development, we are constrained to conclude they do not mean to leave room for the play and action of purely personal and arbitrary power. . . . The fundamental rights to life, liberty, and the pursuit of happiness as individual possessions are secured by those maxims of constitutional law which are the monuments, showing .the victorious progress of the race in securing toman the blessings, of civilization under the reign of just and equal laws.” What once I had occasion to say of the' protection afforded by our government I repeat: It is certainly something in which a citizen of the United' States may feel a generous pride that the government of his country extends protection to all persons within its jurisdiction; and that every blow aimed at any of them, however humble,, come from what quarter it may, is caught upon the broad shield of our blessed Constitution and our equal laws.’ ” Ho Ah Kow v. Nunan, 5 Sawyer, 552, 563.

I utterly dissent from and. reject .the doctrine expressed in the opinion of the majority, that Congress, under the power to exclude or expel aliens, might have directed any Chinese laborer found in the United States without a certificate of residence to be removed out of the country by executive officers, without .judicial trial or examination, just as it might have*' authorized such officers absolutely to prevent his entrance into the country.” An arrest in that way for that purpose would not be a reasonable seizure of the person within the meaning of the Fourth Article of the amendments to the Constitution. It would be brutal and oppressive. The *756 existence of the power thus stated is only consistent with the admission that the .government is one of unlimited and despotic power so far as aliens domiciled in the country are concerned. According to its theory, Congress might have ordered executive officers to take the Chinese laborers to the ocean and put them into a boat and set them adrift; or to take them to the borders of Mexico and turn them loose there; and in both cases without any means of support; indeed, it might have sanctioned towards these laborers the most shocking brutality conceivable. I utterly repudiate all such notions, and reply that brutality, inhumanity, and cruelty cannot be mad¿ -elements in any procedure for the enforcement of the laws of the United States.

The majority of the court have, in their opinion, made numerous citations from the courts and the utterances of individuals upon the power of the government of an independent nation to exclude foreigners from entering its limits, but none, beyond a few loose observations, as to its power to expel and deport from the country those who are domiciled therein by its consent. The citation from the opinion in the recent case of Nishimura Ekiu v. United States, (the Japanese case,) 142 U. S. 651 ; the citation from the opinion in Chae Chan, Ping v. United States, (the Chinese Exclusion case,) 130 U. S. 581, 604, 606 ; the citation in the case before the judiciary committee of the Privy Council — all have reference to the exclusion of foreigners from entering the country. They do not touch upon the question of deporting them from the country after they have been domiciled within it by the consent of its government, which is the real question in the case. The citation from Yattel is only as to. the power of exclusion, that is, from coming to the country. The citation from Phillimore is to the same effect. As there stated, the government allowing the introduction of aliens, may prescribe the conditions on which they shall be allowed to remain, the conditions being imposed whenever they enter the country. There is no dispute about the power of Congress to prevent the 'landing of aliens in the country; the question is as to the power of Congress to deport them with *757 out regard to the guaranties of the Constitution.. . The statement that in England the power to expel aliens has always been recognized and often exercised, and the only question that has ever been as to this power is whether it could be exercised by the King without the consent of Parliament, is, I think, not strictly accurate. The citations given by Mr. Choate in his brief show conclusively, it seems to me, that deportation from the realm has not been exercised in England since Magna Charta, except in punishment for crime, or as a measure in view of existing or anticipated hostilities. But even if that power were exercised by every government of Europe, it would have no bearing in these cases. It may be admitted that the power has been exercised by the various governments of Europe. Spain expelled the Moors; England, in the reign of Edward I, banished fifteen thousand Jews; 1 and Louis XIV, in 1685, by revoking the Edict of Nantes, which, gave religious liberty to Protestants in France, drove out the Huguenots. Nor does such severity of European governments belong only to the distant past. Within three years Russia has banished many thousands of Jews, and apparently intends the expulsion of the whole race — an act of barbarity which has aroused the indignation of all Christendom. Such was the feeling in this country that, friendly as our relations with Russia had always been, President Harrison felt compelled to call the attention of Congress to it in his message in 1891 as a fit subject for national remonstrance. ■ Indeed, all the instances mentioned have been condemned for their barbarity and cruelty, and no power to perpetrate such barbarity is to be implied from the nature of our government, and certainly is not found in any delegated powers under the Constitution.

The government of the United States is one of limited and delegated powers. It takes nothing from the usages or the former action of European governments, nor does it take any power by any supposéd inherent sovereignty. There is a great deal of confusion in the use of the word “ sovereignty ” *758 by law writers. Sovereignty or supreme power is in this country vested in the people, and only in the people. By them certain sovereign powers have been delegated to the government of the United States and other sovereign powers reserved to the States or to themselves. This is not a matter of inference and argument, but is the express declaration of the Tenth Amendment to the Constitution, passed to avoid any misinterpretation of the powers of the general government. That amendment declares that “The powers not delegated to the United States by the Constitution, nor prohibited' by it to the States, are reserved to the States, respectively, or to the people.” When, therefore, power is exercised by Congress, authority for it must be found in express terms in the Constitution, or in the means necessary or proper for the execution of the power expressed. If it cannot be thus found, it does not exist.

It will be seen by its provisions that the sixth section recognizes the right of certain Chinese laborers to remain in the United States, but to render null that right it declares that if within one year'after the passage of the act any Chinese laborer shall have neglected, failed, or refused to comply with the provisions of the act to obtain a certificate of residence, or shall be found within the jurisdiction of the United States .without a certificate of residence, he shall be deemed and adjudged to be unlawfully within the United -States, and may be arrested by any United States customs official, collector of internal revenue or his deputies, a United' States marshal or his deputies, and taken before a United States judge, whose duty it shall be to order that he.be deported from the United States, unless he shall establish clearly to the satisfaction the judge that by reason of accident, sickness, or other unavoidable cause he has been unable to secure his certificate, and to the satisiastion of the judge by at least one credible white witness that ne was a resident of the United States at the time of the passage of the act. His deportation is thus imposed for neglect to obtain.a certificate of residence,-from which he can only escape by showing his inability to secure it from one of the causes named. That is the punishment *759 for his neglect, and that being of an infamous character can only be imposed after indictment, trial, and conviction. If applied to a citizen, none of the justices of this court would hesitate a moment to‘ pronounce it illegal. .Had the punishment been a fine, or anything else than of an infamous character, it might have been imposed without indictment; but not so now, unless we hold that a foreigner from a country at peace with us, though domiciled by the consent of our government, is withdrawn from all the guaranties of due process of law prescribed by 'the Constitution, when charged with an offence to which the gravp punishment designated is affixed.

• The punishment is beyond all reason in its severity. It is out of all proportion to the alleged offence. It is cruel and unusual. As to its. cruelty, nothing can exceed a forcible deportation from a country of one’s residence, and the breaking up of all the relations of friendship, family, and business there contracted. The laborer may be seized at a distance from his home, his family and his business, and taken before the judge for his condemnation, without permission to visit his home, see his family, or complete any unfinished business. Mr. Madison well pictures its character in - his powerful denunciation of the alien law of 1798 in his celebrated report upon the resolutions, from which we have cited, and concludes, as we have seen, that if a banishment of the sort described be not a punishment, and among the severest of pumishments, it will be (difficult to imagine a doom to which the name can be applied.

Again, when taken before a United States judge, he is required, in order to avoid the doom declared, to establish clearly to the satisfaction of the judge that by reason of accident, sickness, or other unavoidable cause, he was unable to secure his certificate, and that he was a resident of the United States at the time, by at least one credible white witness. Here the government undertakes to exact of the party arrested the testimony of a witness of a particular color, though conclusive and incontestible testimony from others may be adduced. The law might as well have said, that unless the laborer *760 should also present a particular person as a witness who could not he produced, from sickness, absence, or other cause, such as the archbishop of the State, to establish the fact of residence, he should be held to be unlawfully within the United States.

There are numerous other objections to the provisions of the act under consideration. Every step in the procedure provided, as truly said by counsel, tramples upon some constitutional right. Grossly it violates the Fourth Amendment, which declares that: “ The right of the people to be secure in their persons, . . . against unreasonable searches and seizures, shall not be violated, and no warrant shall issue but upon probable cause-, supported by oath or affirmation, and particularly describing the . . . persons ... to be seized.”

The act provides for the seizure of the person without oath or affirmation or warrant, and without showing any probable cause by the officials mentioned. The arrest, as observed by counsel, involves a search of his person for the certificate which he is required to have always with him. "Who will have the hardihood and effrontery to say this is' not an “ unreasonable search and seizure of the person ” ? Until now it has never been asserted by any court or judge of high authority that foreigners domiciled in this country by the consent of our government could be deprived of the securities of this amendment; that their persons could be subjected to unreasonable searches and seizures, and that they could be arrested without warrant upon probable cause supported by oath or affirmation.

I will not pursue the subject further. The decision of the court' and the sanction it would give to legislation depriving resident- aliens of the guaranties of the Constitution fills me with apprehensions. Those guaranties are of priceless value to every one resident in the country, whether citizen or alien. I.cannot but regard the decision as a blow against constitutional liberty, when it declares that Congress has the right to disregard the guaranties of the Constitution intended for the protection of all r en, domiciled in the country with the consent of the govern lent, in their rights of person and property. *761 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 qf 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.

Mr. Justice Field’s dissenting opinion bears the titles of the three cases, Nos. 1345, 1346, and 1347, and is further generally entitled “ Chinese Deportation Cases,”

The Jews during his reign were cruelly despoiled, and in 1290 ordered, under penalty of death, to quit England forever before a certain day.— American Encyclopaedia, vol. 6, p. 434.