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in upon the ground that he was a native-| three days after the filing of such notice, born citizen thereof, but who, after a hear- unless further delay is required to investiing, the lawfully designated immigration gate and report upon new evidence, the officers found was not born therein, and to complete record of the case, together with whom they denied admission, which find such briefs, affidavits, and statements as are ing and denial, upon appeal to the Secretary to be considered in connection therewith, of Commerce and Labor, was affirmed, shall be forwarded to the Commissioner

— should the court treat the finding and ac-General of Immigration by the officer in tion of such executive officers upon the ques- charge at the port of arrival, accompanied tion of citizenship and other questions of by his views thereon in writing; but on fact as having been made by a tribunal au- such appeal no evidence will be considered thorized to decide the same, and as final that has not been made the subject of invesand conclusive unless it be made affirmative-tigation and report by the said officer in ly to appear that such officers, in the case charge. submitted to them, abused the discretion “Rule 10. Additional time for the prepavested in them, or, in some other way, in ration of cases after the expiration of three hearing and determining the same, commit- days next succeeding the filing of notice of ted prejudicial error ?

appeal will be allowed only in those instances The proposition presented by these ques- in which, in the judgment of said officer in tions is that, unless the petitioner for a charge, a literal compliance with Rule 9 writ of habeas corpus shows that the immi- would occasion injustice to the appellant, or gration officers have been guilty of unlawful the risk of defeat of the purposes of the law; action or abuse of their discretion or pow- and the reasons for delay beyond the time ers, the writ must be denied, and the pe- prescribed shall, in every instance, be stated titioner banished from the country. In or- in writing in the papers forwarded to the der to see what action is lawful, I refer to Commissioner General of Immigration.” the rules prescribed under the authority

"Rule 21. The burden of proof in all hereinafter referred to. Rule 6 declares cases rests upon Chinese persons claiming that "immediately upon the arrival of Chi- the right of admission to or residence withnese persons

it shall be the duty in the United States to establish such right of the officer

to adopt suitable affirmatively and satisfactorily to the appromeans to prevent communication with themi priate government officers, and in no case by any persons other than the officials un- in which the law prescribes the nature of der his control, to have said Chinese per- the evidence to establish such right shall sons examined promptly, as by law provid- other evidence be accepted in lieu thereof, ed, touching their right to admission, and and in every doubtful case the benefit of the to permit those proving such right to land.” doubt shall be given by administrative offiRules 7, 8, 9, 10, and 21 are as follows: cers to the United States government." "Rule 7. The examination prescribed in

It will be seen that under these rules it Rule 6 should be separate and apart from is the duty of the immigration officer to prethe public, in the presence of government vent communication with the Chinese seekofficials and such witness or witnesses only ing to land by any one except his own offias the examining officer shall designate, and cers. He is to conduct a private examinaif, upon the conclusion thereof, the Chinese tion, with only the witnesses present whom applicant for admission is adjudged to be he may designate. His counsel, if, under inadmissible, he should be advised of his the circumstances, the Chinaman has been right of appeal, and his counsel should be able to procure one, is permitted to look permitted, after duly filing notice of appeal, at the testimony, but not to make a copy to examine, but not make copies of, the evi- ' of it. He must give notice of appeal, if he dence upon which the excluding decision is wishes one, within two days, and within based.

three days thereafter the record is to be "Rule 8. Every Chinese person refused ad sent to the Secretary at Washington; and mission under the provisions of the exclu- every doubtful question is to be settled in fasion laws by the decision of the officer in vor of the government. No provision is charge at the port of entry must, if he shall made for summoning witnesses from a diselect to take an appeal to the Secretary, tance or for taking depositions, and, if, for give written notice thereof to said officer instance, the person landing at San Franciswithin two days after such decision is ren- co was born and brought up in Ohio, it dered.

may well be that he would be powerless to "Rule 9. Notice of appeal provided for in find any testimony in San Francisco to Rule 8 shall act as a stay upon the dispos-prove his citizenship. If he does not hapal of the Chinese person whose case is pen to have money he must go without the thereby affected until a final decision is testimony, and when the papers are sent to rendered by the Secretary; and, within Washington (3,000 miles away from the port, which, in this case, was the place of compelling them to quit a city, place, or landing), he may not have the means of em country, for a specific period of time, or for ploying counsel to present his case to the life. It is inflicted principally upon politiSecretary. If this be not a star-chamber cal offenders, 'transportation' being the proceeding of the most stringent sort, what word used to express a similar punishment more is necessary to make it one?

of ordinary criminals.” The same author I do not see how any one can read those defines "exile” as banishment, and “transrules and hold that they constitute due proc- portation” as “a species of punishment coness of law for the arrest and deportation of sisting in removing the criminal from his a citizen of the United States. If they do own country to another (usually a penal in proceedings by the United States, they colony), there to remain in exile for a prewill also in proceedings instituted by a scribed period.” In Rapalje.& Lawrence's state, and an obnoxious class may be put Law Dictionary (vol. 1, page 109), "banbeyond the protection of the Constitution ishment” is called : A punishment by by ministerial officers of a state, proceed forced exile, either for years or for life; ining in strict accord with exactly similar flicted principally upon political offenders, rules.

'transportation' being the word used to exIt will be borne in mind that the peti- press a similar punishment of ordinary tioner has been judicially determined to be criminals.” In 4 Bl. Com. 377, it is said: a free-born American citizen, and the con- “Some punishments consist in exile or bantention of the government, sustained by the ishment, by abjuration of the realm, or judgment of this court, is that a citizen, transportation.” Vattel, Nations, bk. 1, § guilty of no crime—for it is no crime for a 228, declares: “As a man may be deprived citizen to come back to his native land- of any right whatsoever by way of punishmust, by the action of a ministerial officer, ment; exile, which deprives him of the be punished by deportation and banish- right of dwelling in a certain place, may ment, without trial by jury and without ju- be inflicted as a punishment; banishment dicial examination.

is always one; for a mark of infamy cannot Such a decision is, to my mind, appalling. be set on any one but with a view of punBy all the authorities the banishment of a ishing him for a fault, either real or precitizen is punishment, and punishment of tended.” the severest kind. In Fong Yue Ting v. President Madison, in his report on the United States, 149 U. S. 698, 37 L. ed. 905, Virginia resolutions concerning the alien 13 Sup. Ct. Rep. 1016, it was held by a and sedition laws, said (4 Elliott's Debates, majority of the court that the removal from 455), referring to the possibilities which this country of an alien was not a punish- attend a removal from the country, "if a ment, Mr. Justice Gray, speaking for that banishment of this sort be not a punishmajority, saying (p. 730, 37 L. ed. 919, 13 ment, and among the severest of punishSup. Ct. Rep. 1028):

ments, it will be difficult to imagine a doom “The proceeding before a United States to which the name can be applied.” judge, as provided for in § 6 of the act of The 12th section of the English habeas 1892 [27 Stat. at L. 25, chap. 60, U. S. corpus act (31 Car. II.), one of the three Comp. Stat. 1901, p. 1320], is, in no proper great muniments of English liberty, enactsense, a trial and sentence for a crime or ed “that no subject of this realm, that now offense. It is simply the ascertainment, by is or hereafter shall be an inhabitant or appropriate and lawful means, of the fact resident of this kingdom of England, dominwhether the conditions exist upon which ion of Wales, or town of Berwick-uponCongress has enacted that an alien of this Tweed, shall or may be sent prisoner into class may remain within the country. The Scotland, Ireland, Jersey, Guernsey, Tangorder of deportation is not a punishment ier, or into parts, garrisons, islands, or for crime. It is not a banishment, in the places beyond the seas, which are or at sense in which that word is often applied to any time hereafter shall be within or withthe expulsion of a citizen from his country out the dominions of his majesty, his heirs by way of punishment.”

or successors; and that every such imprisBut it was not suggested, and indeed onment is hereby enacted and adjudged to could not be, that the deportation and ex- be illegal,

and the person or perile of a citizen was not punishment. The sons who shall knowingly frame, contrive, forcible removal of a citizen from his coun- write, seal, or countersign any warrant for try is spoken of as banishment, exile, de such commitment, detainer, or transporta

portation, relegation, or transportation; tion, or shall so commit, detain, imprison, .but, by whatever name called, it is always or transport any person or persons, con

considered a punishment. In Black's Law trary to this act, or be any ways advising, Dictionary "banishment” is defined as "a aiding, or assisting therein, being lawfully punishment inflicted upon criminals, by 'convicted thereof shall be disabled from

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thenceforth to bear any office of trust or that ground, applies to any United States profit within the said realm of England, court for a writ of habeas corpus, is endominion of Wales, or town of Berwick- titled to have a hearing and a judicial deupon-Tweed, or any of the islands, terri- termination of the facts so alleged; and tories, or dominions thereunto belonging; that no act of Congress can be understood and shall incur and sustain the pains, or construed as a bar to such hearing and penalties, and forfeitures limited, ordained, judicial determination." and provided in and by statute of provi- See also Re Look Tin Sing, 10 Sawy. 353, sion and praemunire, made in the sixteenth | 21 Fed. 905; Ex parte Chan San Hee, 35 year of King Richard II.; and be incapable Fed. 354; Re Yung Sing Hee, 36 Fed. 437; of any pardon from the king, his heirs or Re Wy Shing, 13 Sawy. 530, 36 Fed. 553. successors, of the said forfeitures, losses, or In the first of these cases it was said by disabilities, or any of them.” [3 Stat. at Mr. Justice Field (p. 361, Fed. p. 910): L. 400, chap. 2.]

“Being a citizen, the law could not inIt is true in this case the petitioner was tend that he should ever look to the governreturning to San Francisco from China. ment of a foreign country for permission to Whether his absence from this country had return to the United States, and no citizen been for a few weeks or a few years is not can be excluded from this country except in shown, nor does it matter. The right of a punishment for crime. Exclusion for any citizen is not lost by a temporary absence other cause is unknown to our laws, and befrom his native land, and when he returns yond the power of Congress.' he is entitled to all the protection which he

In Ex parte Tong Tong, 108 U. S. 556, had when he left.

559, 27 L. ed. 826, 827, 2 Sup. Ct. Rep. In Gonzales v. Williams, 192 U. S. 1, 48 871, 872, Mr. Chief Justice Waite said: L. ed. 317, 24 Sup. Ct. Rep. 177, the peti

“The writ of habeas corpus is the remedy tioner, held in custody by the immigration which the law gives for the enforcement of officers, sued out a habeas corpus on the the civil right of personal liberty.” ground that she was not an alien immigrant.

In United States v. Jung Ah Lung, 124 The circuit court decided against her, but U. S. 621, 31 L. ed. 591, 8 Sup. Ct. Rep. on appeal we discharged her from custody, 663, a petition for habeas corpus by a Chisaying (p. 7, L. ed. p. 319, Sup. Ct. Rep. p. nese laborer, it was held that177):

“The jurisdiction of the court was not “If she was not an alien immigrant within affected by the fact that the collector had the intent and meaning of the act of Con- passed on the question of allowing the pergress entitled 'An Act in Amendment of the son to land, or by the fact that the treaty Various Acts Relative to Immigration and provides for diplomatic action in case of a the Importation of Aliens under Contract hardship." or Agreement to Perform Labor,' approved By the 5th Amendment to the ConstituMarch 3, 1891 (26 Stat. at L. 1084, chap. tion no person can “be deprived of life, lib551), the commissioner had no power to erty, or property without due process of detain or deport her, and the final order of law.” It may be true, as decided in Den the circuit court must be reversed.”

ex dem. Murray v. Hoboken Land & Improv. It is true, the facts were admitted. So Co. 18 How. 272, 15 L. ed. 372, an action placing that case alongside of this, the result involving the validity of a distress warrant is that if the United States admits that the issued by the Solicitor of the Treasury, that petitioner is not an alien, he is entitled to the requirement of a judicial trial does his discharge. If he proves the fact, he is not extend to every case, but, as stated by not entitled, but must be deported. It was

It was Mr. Justice Curtis in that case (p. 284, L. not suggested in that case that the immigra- ed. p. 377): "To avoid misconstruction tion officer had been guilty of any abuse of upon -so grave a subject, we think it proper discretion or powers, the only complaint be- to state that we do not consider Congress ing that he had ordered the deportation of can either withdraw from judicial cognize the petitioner, who was not an alien. That ance any matter which, from its nature, is same fact is alleged here, but, is now ad- the subject of a suit at the common law, or judged insufficient to prevent the deporta in equity or admiralty; nor, on the other tion. In Gee Fook Sing v. United States, hand, can it bring under the judicial power 1 C. C. A. 211, 212, 7 U. S. App. 27, 30, 49 a matter which, from its nature, is not a Fed. 146, 148, the court of appeals of the subject for judicial determination.” And ninth circuit held:

in Hager v. Reclamation Dist. No. 108, 111 “That any person alleging himself to be U. S. 701, 708, 28 L, ed. 569, 572, 4 Sup. a citizen of the United States, and desiring Ct. Rep. 663, 667, it was held that "unto return to his country from a foreign land, doubtedly where life and liberty are inand that he is prevented from doing so volved, due process requires that there be without due process of law, and who, on a regular course of judicial proceedings,

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which imply that the party to be affected Chinese descent, and limit that jurisdiction shall have notice and an opportunity to be to Chinese aliens. In United States v. heard.” By article 3, § 2 of the Constitu- Wong Kim Ark, 169 U. S. 649, 42 L. ed. tion, "the trial of all crimes, except in cases 890, 18 Sup. Ct. Rep. 456, it is stated (p. of impeachment, shall be by jury;" and by 653, L. ed. p. 892, Sup. Ct. Rep. p. 458): the 5th Amendment, “no person shall be “It is conceded that, if he is a citizen of held to answer for a capital or otherwise the United States, the acts of Congress infamous crime unless on a presentment or known as the Chinese exclusion acts, proindictment of a grand jury.”

hibiting persons of the Chinese race, and Summing this up, banishment is a pun- especially Chinese laborers, from coming inishment, and of the severest sort. There to the United States, do not and cannot apcan be no punishment .except for crime. ply to him." This petitioner has been guilty of no crime, By the act of August 18, 1894 (28 Stat. and so judicially determined. Yet, in defi- at L. 390, chap. 301, U. S. Comp. Stat. 1901, ance of this adjudication of innocence, with p. 1303), it is provided that "in every case only an examination before a ministerial where an alien is excluded from admission officer, he is compelled to suffer punish- into the United States under any law or ment as a criminal, and is denied the pro- treaty now existing or hereafter made, the tection of either a grand or petit jury. decision of the appropriate immigration or

But, it is said, that he did not prove his customs officers, if adverse to the admisinnocence before the ministerial officer. Can sion of such alien, shall be final, unless reone who judicially establishes his innocence versed on appeal to the Secretary of the of any offense be punished for crime by the Treasury.” The same limitation of finality action of a ministerial officer? Can he be to the case of aliens is repeated in the act punished because he has failed to show to of March 3, 1903 (32 Stat. at L. 1213, chap. the satisfaction of that officer that he is 1012).1 So it appears that this court dis

is 10 innocent of an offense? The Constitution charged from the custody of the immigradeclares that “the privilege of the writ of tion officers a person of Chinese descent on habeas corpus shall not be suspended, un- the ground that he was a citizen of the less when, in cases of invasion or rebellion, United States, doing this upon the concesthe public safety may require it.” There sion of the government that, if he was a is no rebellion or invasion. Can a citizen citizen, the exclusion acts had no applicabe deprived of the benefit of that so much tion to him; that Congress in terms makes vaunted writ of protection by the action of the decision of the immigration officer final a ministerial officer ?

only when the party is an alien, and that By $ 8 of the act of September 13, 1888 the rules prescribed by the proper depart(25 Stat. at L. 476, chap. 1015 U. S. Comp. ment exclude from the operation of the Stat. 1901, p. 1315), the act prohibiting law citizens of the United States of Chinese the coming of Chinese laborers, the Secre- descent. Yet, in spite of all this, it is held tary of the Treasury was authorized to that this citizen of the Unised States must, make rules and regulations to carry into by virtue of the ruling of a ministerial ofieffect the provisions of the statute. This cer, be banished from the country of which authority, by subsequent legislation, has he is a citizen. And this upon the ground been vested in the Secretary of Commerce that such officer has a right to decide whethand Labor, by whom some sixty-one rules er he is or is not a citizen, and his decihave been announced. In the second rule sion on the question excludes all judicial it is provided that “if the Chinese person examination. has been born in the United States, neither Let us see what have been the rulings of the immigration acts nor the Chinese ex- this court in other cases and first in reclusion acts prohibiting persons of the Chi- spect to judicial decisions. In Thompson nese race, and especially Chinese laborers, v. Whitman, 18 Wall. 457, 21 L. ed. 897, from coming into the United States, apply Thompson, a sheriff of a county in New Jerto such person.” Rule 46 reads: “The pro- sey, was sued by Whitman for taking and visions of the laws regulating immigration, carrying away a sloop, the property of the excluding those which prescribe payment of plaintiff, and justified his action by the the head tax, apply to the residents and judgment of the court, which had ordered natives of Porto Rico and Philippine Is- the sloop to be sold for rjciating a statute lands, and, moreover, the provisions of the of New Jersey in reference to raking and laws relating to the exclusion of Chinese gathering clams. There was thus a judicial apply to all such persons as are of the Chi-determination of the liability of the sloop nese race, except those who are born in the to seizure and condemnation. NotwithstandUnited States.” In other words, the Deing this judicial determination, this court partment rules exclude from the jurisdic-held that the plaintiff might show, as a tion of the immigration officers citizens of matter of fact, that the sloop was not with

1 U. S. Comp. St. Supp. p. 170.

in the limits of the state of New Jersey, and of the petition.

The recital in the therefore was not violating its statute. In proceedings in Pennsylvania of the facts the opinion, by Mr. Justice Bradley, this quo necessary to show jurisdiction may be contation was made from the opinion of Chief tradicted. Thompson v. Whitman, 18 Wall. Justice Marshall in Rose v. Himely, 4 457, 21 L. ed. 897." Cranch, 269, 2 L. ed. 617:

I have always supposed that a judgment “ 'Upon principle,' says Chief Justice Mar- of a court of competent jurisdiction was at shall, “it would seem that the operation of least as conclusive as the finding of a minisevery judgment must depend on the power terial officer, and that the right of personal of the court to render that judgment; or, liberty was as sacred in the eyes of the law in other words, on its jurisdiction over the as the title to a sloop. subject-matter, which it has determined. In Turning now to the action of ministerial some cases that jurisdiction unquestionably or administrative officers, and what has depends as well on the state of the thing as been the uniform ruling of this court? Take on the constitution of the court. If, by any the Land Department. Questions of fact means whatever, a prize court should be in- within the undoubted jurisdiction of that duced to condemn, as prize of war, a ves- Department are considered as settled by its sel which was never captured, it could not rulings. But questions of fact upon which be contended that this condemnation operat- its jurisdiction rests are never so regarded. ed a change of property. Upon principle, Thus, whether a tract of public land be then, it would seem that, to a certain ex- swamp, mineral, or agricultural, may be fitent, the capacity of the court to act upon nally determined by the Department; but the thing condemned, arising from its being whether a tract is public land is not so dewithin or without their jurisdiction, as well termined, and in all the multitude of cases as the constitution of the court, may be con- that have been presented to this court it has sidered by that tribunal which is to decide never even been suggested that a ruling of on the effect of the sentence.'

the Department that a tract was public Rose's “Notes on United States Reports” land was conclusive unless it appeared that show that a multitude of cases, both state the Land Department was guilty of some and Federal, rely upon Thompson v. Whit-abuse of its discretion

or powers. The man as authority. Among them is Scott v. question, and the only question, has been, McNeal, 154 U. S. 34, 38 L. ed. 896, 14 Sup. Was the tract public land or not? In UnitCt. Rep. 1108, in which it was held that a ed States v. Stone, 2 Wall. 525, 17 L. ed. court of probate, having jurisdiction in the 765, it appeared that a tract of land adjaadministration of deceased persons, had no cent to a military post had been at one time jurisdiction to appoint an administrator of surveyed, and by that survey was included one who was alive, although he had been ab- within the military reservation. Subsesent, and not heard from for seven years, quently a new survey was had, by which and that a sale made by the administrator this tract was excluded, and thereafter it appointed in such a case passed no title. It was, in due course of administration, patwas cited approvingly in Andrews v. An-ented. Thereupon this suit was brought to drews, 188 U. S. 14, 47 L. ed. 366, 23 Sup. set aside the patent. It was not suggested Ct. Rep. 237. There a decree of divorce, that the Land Department had been guilty rendered by a South Dakota court, in a case of any irregularity in administration, or in which both parties were in court, and in had not proceeded in accordance with the which the court found not only that there established rules of procedure; yet the were sufficient grounds for divorce, but also court unanimously held that the patent that the plaintiff had been a bona fide resi- must be set aside, on the ground that the dent of South Dakota for the statutory length land was reserved to the United States as of time, and therefore had the requisite stat- a part of the military reservation by the us to give that court jurisdiction, could be original survey. In St. Louis Smelting Co. upset in Massachusetts by proof that the v. Kemp, 104 U. S. 636, 641, 26 L. ed. 875, plaintiff was not in fact a bona fide resi- 876, we said: dent of South Dakota. The same case was “Of course, when we speak of the conclualso relied upon as authority in Bell v. Bell, sive presumptions attending a patent for 181 U. S. 175, 177, 45 L. ed. 804, 805, 21 lands, we assume that it was issued in a Sup. Ct. Rep. 551, 552, where we said: case where the Department had jurisdiction

“No valid divorce from the bond of mat- to act and execute it; that is to say, in a rimony can be decreed on constructive serv- case where the lands belonged to the United ice by the courts of a state in which neither States, and provision had been made by law party is domiciled. And by the law of for their sale. If they never were public Pennsylvania every petitioner for a divorce property, or had previously been disposed must have had a bona fide residence within of, or if Congress had made no provision for the state for one year next before the filing 'their sale, or had reserved them, the De.

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