ense of justice of many. It was to the effect
that Congress could empower the executive to arrest upon its own
warrant any person it claimed to be an alien unlawfully residing in
the United States and to deport him without trial, unless he could
affirmatively prove to the satisfaction of a single judge (to be
selected by the executive), and by a specified kind of evidence only,
that he was not guilty, however ample and probative other evidence
might be adduced and however impossible to produce the specified
evidence. Justices Fuller, Field, and Brewer vigorously dissented on
the ground that such action by the executive, though under the
authority of Congress, was in violation of the constitutional
guaranties against arrest without judicial warrant, against
deprivation of liberty without trial by jury and due process of law.

Justice Brewer after quoting Madison, that banishment is among the
severest of punishments, went on to say: "But punishment implies a
trial. 'No person shall be deprived of life, liberty or property
without due process of law.' Due process of law requires that a man
be heard before he is condemned, and both heard and condemned in the
due and orderly procedure as recognized by the common law from time
immemorial."

In my research I have found more cases where it has seemed to me the
courts have construed constitutional guaranties too strictly, than
where they have construed them too liberally. The tendency has been
rather away from the enforcement of constitutional guaranties and to
allow legislative encroachments upon them. I regard this as a very
dangerous tendency. Perhaps the encroachments have not been at first
perceived, but I think courts should be vigilantly on the watch for
them, otherwise individual rights guaranteed to the people by the
constitution may be gradually weakened and finally destroyed. This
duty of the courts was declared in the case of _Boyd_ v. _United
States_, 116 _U. S._ 616 at page 641--where in refusing effect to a
statute requiring the production of his books and papers by a
defendant in proceedings for forfeiture, the court said: "Though the
proceeding in question is devested of the aggravating effects of
actual search and seizure, yet it contains their substance and
essence, and effects their substantial purpose. It may be that it is
the obnoxious thing in its mildest and least repulsive form; but
illegitimate and unconstitutional practices get their first footing in