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tify its prohibition. The economical problem, arising from a radical difference in the manners and mode of life of the Chinese, not to consider the charges of their moral depravity, threatened to disturb the industrial and social conditions of those States, to the great injury of the native population. It was even feared that the white population, not being able to subsist on the diet of the Chinese, and consequently being unable to work for as low wages, would be forced to leave the country; and as they moved eastward; the Chinese would take their place, until finally the whole country would swarm with the almond-eyed Asiatic. Selfpreservation is the first law of nature, with States and societies, as with individuals. It can not be doubted that the act of Congress, which prohibited all future Chinese immigration, was within the constitutional powers of the United States.

A number of decisions have been rendered under the Chinese Exclusion Act, in all of which the constitutionality of the act has been sustained. In the case of In re Chae Chan Ping,1 the petitioner had been in this country and had departed prior to the enactment of the exclusion act, with a certificate of identification provided for by the prior law. The exclusion act expressly prohibits re-entry of such a person, who had not returned prior to the enactment of the exclusion act. The court say:

"The certificate, it is urged, is a contract entered into between the United States and the petitioner in pursuance of the restriction act, which vests him with a right that cannot now be divested under the general principles of public justice, even though the constitutional provision against passing laws impairing the obligations of contracts is in terms only restrictive upon the States. We think this is not the correct view. There is no contract between the United States and individual Chinese laborers at all. The Chinese

1 36 Fed. 431.

*

laborers obtain no rights under the acts of Congress beyond what is secured to them by the treaties. There is no consideration moving from them, individually or collectively, under the act of Congress, upon which a contract was founded. All the rights they have are derivative, namely, merely resting upon the stipulations of the treaty between the two governments, which are the contracting, and only contracting, parties. The certificates are instruments of evidence, issued to afford convenient proof of the identity of the party entitled to enjoy the privileges secured by the treaties, and to prevent frauds, and they are so designated in the act. To call these acts and certificates provided in pursuance thereof a contract would be an abuse of language. As between the two governments treaties are laws, and they confer rights and privileges as long as they are in force; and doubtless some rights accrue and become indefeasibly vested by covenants or stipulations that have ceased to be executory and have become fully executed, as in the case of title to property acquired thereunder. But we do not regard the privilege of going and coming from one country to another as one of this class of rights. The being here with the right of remaining is one thing, but voluntarily going away with a right at the time to return is quite another.”

In other cases,1 it was held that the Chinese Exclusion Act of Congress of 1892, was not unconstitutional, in that it provided that the person charged with the violation of the act is to be presumed guilty, i. e., of being unlawfully in this country, without the presentation of any evidence against him, until he established his innocence or right to be in this country by affirmative evidence. The reason which was assigned for justifying this departure from the common law in respect to the burden of proof in criminal cases, is that the facts which constitute a de

1 In re Sing Lee, 54 Fed. 334, and In re Ching Jo, Id.

fense are peculiarly within the knowledge of the person charged.1

The United States government have also instituted police regulations for the purpose of preventing pauper immigration, and when an immigrant is without visible means of support, the steamship company which transported him is required to take him back. The purpose of these regulations itself suggests the reasons that might be advanced in justification of them, and, therefore, no statement of them is necessary.

§ 59. The public duties of a citizen. In return for the protection guaranteed to the citizen, he is required to do whatever is reasonable and necessary in support of the government and the promotion of the public welfare. It will not be necessary to enter into details, for these duties vary with a change in public exigencies. The object of taxation is treated more particularly in a subsequent section.2 The ordinary public duties of an American citizen are to assist the peace officers in preserving the public order and serving legal processes, and to obey all commands of the officers to aid in the suppression of all riots, insurrections and other breaches of the peace; to serve as jurors in the courts of justice, to perform military service in time of peace, as well as in war. It is common for the States to require its male citizens to enroll themselves in the State militia, and to receive instruction and practice in military tactics; and in time of war there can be no doubt of the power of the government to compel a citizen to take up arms in defense of the country against the attacks of an enemy, in the same manner as it may require the citizen to aid in suppressing internal disorders.3 At an earlier day, it was also a com

1 But see, apparently, contra, as to what the act provides in respect to the burden of proof, United States v. Long Hop, 55 Fed. 58.

2 See post, § 160 et seq.

8 But defensive warfare must in this connection be distinguished

mon custom to require of the citizens of a town or city the duty of assisting in the quenching of accidental fires and the prevention of conflagrations; and in some of the States (notably South Carolina) every male citizen, between certain ages, was at one time required to be an active member of a militia or fire company.1

It was also at one time the common duty of a citizen to perform, or supply at his expense, labor upon the public roads, in order to keep them in repairs. But this specific duty is each day becoming more uncommon, and the repairs are being made by employees of the State or municipal community, whose wages are paid out of the common fund. Indeed, the general tendency at the present day is to relieve the citizen of the duty of performing these public duties by the employment of individuals, who are specially charged with them, and perform them as a matter of business. Even in regard to the matter of military service in time of war this tendency is noticeable. Whenever a draft is made by the government for more men, and one whose name is

from offensive warfare. The duty of the citizen to repel an attack upon his country is clear, but it is certainly not considered in the United States a duty of the citizen to aid the government in the prosecution of an offensive war, instituted for the purpose of aggrandizement. But the question involves the practical difficulty of determining which party in a particular war is on the defensive, and which is the attacking party. It is not necessary for the territory of one's country to be invaded, in order that the war may be offensive. Substantial and valuable international rights may be trespassed without a blow being struck or a foot of land invaded; and usually both parties claim to be on the defensive. But the difficulty in answering this question of fact does not affect the accuracy of the theoretic distinction, although it does take away its practical value.

1 But it is now found to be more profitable, in combating the danger of fire in municipal life, to employ men who are specially charged with the performance of this duty. Voluntary, or unprofessional, fire departments are now to be found, in the United States, only in the villages and small towns.

' In Ohio, it was held that a statute, which required two days' labor on the public roads, did not violate the provision of the State bill of rights, that there shall be no involuntary servitude in the State. Dennis v. Simon, 51 Ohio St. 233

found in the list desires to avoid the personal performance of this public duty, he is permitted to procure a substitute. The duty of acting as juror is about the only public duty, whose performance is still required to be personal, and even that is somewhat in danger of substitutive performance. The flimsy and unreasonable excuses, too often given and received for discharge from jury duty, are fast paving the way to the appointment of professional jurymen.

$ 59

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