Congress has power to exclude aliens from, and to prescribe the
conditions on which they may enter, the United States; to establish
regulations for deporting aliens who have illegally entered, and to
commit the enforcements of such conditions and regulations to
executive officers. Deporting, pursuant to law, an alien who has
illegally entered the United States does not deprive him of his
liberty without due process of law.
The Alien Immigration Act of March, 1903, 32 Stat. 1213, does
not violate the federal Constitution, nor are its provisions as to
the exclusion of aliens who are anarchists, unconstitutional.
A board of inquiry and the Secretary of Commerce and Labor
having found that an alien immigrant was an anarchist within the
meaning of the Alien
Page 194 U. S. 280
Immigration Act of March 3, 1903, and there being evidence on
which to base this conclusion, his exclusion, or his deportation
after having unlawfully entered the country within the period
prescribed pursuant to the provisions of the act, will not be
reviewed on the facts.
John Turner filed in the United States Circuit Court for the
Southern District of New York, October 26, 1903, a petition
alleging --
"First. That, on October 23, in the City of New York, your
relator was arrested by divers persons claiming to be acting by
authority of the government of the United States, and was by said
persons conveyed to the United States immigration station at Ellis
Island, in the harbor of New York, and is now there imprisoned by
the Commissioner of Immigration of the port of New York."
"Second. Your relator is so imprisoned by virtue of a warrant
sworn out by the Secretary of the Department of Commerce and Labor,
which warrant charges your relator with being an anarchist, and
being unlawfully within the United States, in violation of section
2 and section 20 of the immigration laws of the United States, as
amended by Act of March 3, 1903."
"Third. Upon information and belief, that a special board of
inquiry, consisting of Charles Semsey, Captain Weldon, supervising
inspector, and L. C. Stewart, all of whom are executive officers of
the United States, has inquired into your relator's case, and
decided that your relator is an anarchist, and is in the United
States in violation of law, within the meaning of the Act of March
3, 1903."
"Fourth. Your relator denies that he is an anarchist within the
meaning of the immigration laws of the United States, and states to
the court that about six years ago, he took out his first papers of
application for citizenship in this country, and that he has at no
times been engaged as a propagandist of doctrines inciting to, or
advising, violent overthrow of government, but for about six years
last past he has been the paid organizer of the retail clerks of
Great Britain, and his business
Page 194 U. S. 281
in this country is solely to promote the interests of organized
labor, and that he has at all times conducted himself as a peaceful
and law-abiding citizen."
"By reason of all of which facts, your relator says that his
imprisonment is illegal, in that he is being deprived of his
liberty without due process of law and is being denied equal
protection of the laws, contrary to the Constitution and laws of
the United States."
And praying for a writ of habeas corpus to the Commissioner of
Immigration of the port of New York, and also for a writ of
certiorari to bring up the record of the board of inquiry which
adjudged him to be an anarchist and in the United States in
violation of the immigration laws. The commissioner made return
under oath, and also certified the record of the board of
inquiry.
The return stated --
"That the above-named John Turner is an alien, a subject of the
Kingdom of Great Britain and Ireland; that said alien came to the
United States from England on or about ten days prior to October
24, 1903, as deponent is informed and believes."
"Said John Turner was arrested in the City of New York on or
about October 23, 1903, under a warrant issued by the Secretary of
the Department of Commerce and Labor of the United States, and was
taken to the Ellis Island immigration station, where he was
examined by a board of special inquiry, duly constituted according
to law, upon his right to remain in this country, and that said
alien was, by said board, found to be an alien anarchist, and was,
by unanimous decision of said board, ordered to be deported to the
country from whence he came, as a person within the United States
in violation of law. That on October 26, 1903, said alien appealed
from the said decision of the board of special inquiry to the
Secretary of Commerce and Labor, who dismissed the appeal, and
directed that said alien be deported to the country from whence he
came, upon the ground that said alien is an anarchist
Page 194 U. S. 282
and a person who disbelieves in, and who is opposed to, all
organized government, and was found to be in the United States in
violation of law."
"That annexed hereto is a copy of the above mentioned warrant
for the arrest and deportation of said John Turner, and copies of
the minutes of said hearing before the board of special inquiry,
and a copy of the order or decision of the Secretary of Commerce
and Labor dismissing said appeal, and again directing deportation.
That said John Turner is now held in deponent's custody at the
Ellis Island immigration station, pending deportation to the
country from whence he came, in accordance with the above-mentioned
decision or order of the Secretary of Commerce and Labor."
The warrant issued by the Secretary was addressed to certain
United States immigrant inspectors, and recited that, from the
proofs submitted, the Secretary was satisfied that Turner, an alien
anarchist, came into this country contrary to the prohibition of
the Act of Congress of March 3, 1903, and commanded them to take
him into custody, and return him to the country from whence he came
at the expense of the United States. On appeal to the Secretary,
the record of proceedings before the board of inquiry was
transmitted, and the Secretary held:
"The evidence shows that the appellant declined to give exact
information as to the manner in which he secured admission to this
country, although he swears that he arrived here about ten days
ago. He admits that he is an anarchist and an advocate of
anarchistic principles, which brings him within the class defined
by section 38 of the Act approved March 3, 1903. In view of these
facts, the appeal is dismissed, and you are directed to deport the
said John Turner, in conformity with warrant now in your hands for
execution."
The hearing before the board of inquiry was had October 24,
1903, and it appeared from the minutes thereof that Turner
testified that he was an Englishman; that he had been in the United
States ten days, and that he did not come through New York, but
declined to either affirm or deny that he arrived
Page 194 U. S. 283
via Canada; that he would not undertake to deny that he had, in
the lecture delivered in New York, October 23, declared himself to
be an anarchist, which, he said, was a statement that he would
make, and that the testimony of the inspectors was about correct.
That evidence gave extracts from the address referred to, including
these:
"Just imagine what a universal tie-up would mean. What would it
mean in New York City alone if this idea of solidarity were spread
through the city? If no work was being done, if it were Sunday for
a week or a fortnight, life in New York would be impossible, and
the workers, gaining audacity, would refuse to recognize the
authority of their employers, and eventually take to themselves the
handling of the industries. . . . All over Europe they are
preparing for a general strike, which will spread over the entire
industrial world. Everywhere the employers are organizing, and to
me at any rate, as an anarchist, as one who believes that the
people should emancipate themselves, I look forward to this
struggle as an opportunity for the workers to assert the power that
is really theirs."
Certain papers were found on Turner, one of them being a list of
his proposed series of lectures (which, when the warrant was in
execution, he rolled up and threw away), the subjects including:
"The Legal Murder of 1887," and "The Essentials of Anarchism;"
notices of meetings, one of a mass-meeting November 9 at which
"speeches will be delivered by John Turner in English, John
Most, in German, and several other speakers. Don't miss this
opportunity to hear the truth expressed about the great Chicago
tragedy on the eleventh of November, 1887,"
and another, stating: "It may be interesting to all that Turner
has recently refused to accept a candidacy to Parliament because of
his anarchistic principles."
A demurrer was interposed to the return, and, after argument,
the circuit court dismissed the writ and remanded the petitioner.
126 F. 253. From this order an appeal was prayed and allowed to
this Court, and, having been docketed, petitioner was admitted to
bail.
Page 194 U. S. 284
Sections 2 and 38 of the Act of March 3, 1903, entitled "An Act
to Regulate the Immigration of Aliens into the United States," 32
Stat. 1213, c. 1012, are as follows:
"SEC. 2. That the following classes of aliens shall be excluded
from admission into the United States: all idiots, insane persons,
epileptics, and persons who have been insane within five years
previous; persons who have had two or more attacks of insanity at
any time previously; paupers; persons likely to become a public
charge; professional beggars; persons afflicted with a loathsome or
with a dangerous contagious disease; persons who have been
convicted of a felony or other crime or misdemeanor involving moral
turpitude; polygamists, anarchists, or persons who believe in or
advocate the overthrow by force or violence of the government of
the United States or of all government or of all forms of law, or
the assassination of public officials; prostitutes, and persons who
procure or attempt to bring in prostitutes or women for the purpose
of prostitution; those who have been, within one year from the date
of the application for admission to the United States, deported as
being under offers, solicitations, promises or agreements to
perform labor or service of some kind therein, and also any person
whose ticket or passage is paid for with the money of another, or
who is assisted by others to come, unless it is affirmatively and
satisfactorily shown that such person does not belong to one of the
foregoing excluded classes; but this section shall not be held to
prevent persons living in the United States from sending for a
relative or friend who is not of the foregoing excluded classes:
Provided, That nothing in this act shall exclude persons
convicted of an offense purely political, not involving moral
turpitude:
And provided further, That skilled labor may be
imported, if labor of like kind unemployed cannot be found in this
country:
And provided further, That the provisions of this
law applicable to contract labor shall not be held to exclude
professional actors, artists, lecturers, singers, ministers of any
religious denomination, professors for colleges or seminaries,
persons
Page 194 U. S. 285
belonging to any recognized learned profession, or persons
employed strictly as personal or domestic servants."
"SEC. 38. That no person who disbelieves in, or who is opposed
to, all organized government, or who is a member of, or affiliated
with, any organization entertaining and teaching such disbelief in,
or opposition to, all organized government, or who advocates or
teaches the duty, necessity, or propriety of the unlawful
assaulting or killing of any officer or officers, either of
specific individuals or of officers generally, of the government of
the United States or of any other organized government, because of
his or their official character, shall be permitted to enter the
United States or any territory or place subject to the jurisdiction
thereof. This section shall be enforced by the Secretary of the
Treasury, under such rules and regulations as he shall
prescribe."
"That any person who knowingly aids or assists any such person
to enter the United States or any territory or place subject to the
jurisdiction thereof, or who connives or conspires with any person
or persons to allow, procure, or permit any such person to enter
therein, except pursuant to such rules and regulations made by the
Secretary of the Treasury, shall be fined not more than five
thousand dollars, or imprisoned for not less than one nor more than
five years, or both."
By the Act of February 14, 1903, 32 Stat. 825, c. 552, "To
Establish the Department of Commerce and Labor," the jurisdiction,
supervision, and control possessed and exercised by the Department
of the Treasury over the immigration of aliens into the United
States were transferred to the Department of Commerce and Labor
established by the act, to take effect and be in force the first
day of July, 1903.
Page 194 U. S. 289
MR. CHIEF JUSTICE FULLER, after making the foregoing statement,
delivered the opinion of the Court.
This appeal was taken directly to this Court on the ground that
the case involved the construction or application of the
Constitution of the United States, and that the constitutionality
of a law of the United States was drawn in question, and although
it may be, as argued by the government, that the principles which
must control our decision have been practically settled, we think,
the whole record considered, that we are not constrained to dismiss
the appeal for that reason.
It is contended that the Act of March 3, 1903, is
unconstitutional because in contravention of the First, Fifth and
Sixth articles of amendment of the Constitution, and of Section 1
of Article III of that instrument, and because no power
"is delegated by the Constitution to the general government over
alien friends with reference to their admission into the United
States or otherwise, or over the beliefs of citizens, denizens,
sojourners, or aliens, or over the freedom of speech or of the
press."
Repeated decisions of this Court have determined that Congress
has the power to exclude aliens from the United States; to
prescribe the terms and conditions of which they may come in; to
establish regulations for sending out of the country such aliens as
have entered in violation of law, and to commit the enforcement of
such conditions and regulations to executive
Page 194 U. S. 290
officers; that the deportation of an alien who is found to be
here in violation of law is not a deprivation of liberty without
due process of law, and that the provisions of the Constitution
securing the right of trial by jury have no application.
Chae
Chan Ping v. United States, 130 U. S. 581;
Nishimura Ekiu v. United States, 142 U.
S. 651;
Fong Yue Ting v. United States,
149 U. S. 698;
Lem Moon Sing v. United States, 158 U.
S. 538;
Wong Wing v. United States,
163 U. S. 228;
Fok Young Yo v. United States, 185 U.
S. 296;
Japanese Immigrant Case, 189 U. S.
86;
Chin Bak Kan v. United States, 189
U. S. 193;
United States v. Sing Tuck,
194 U. S. 161.
In the case last cited, the distinction on which
Gonzales v.
Williams, 192 U. S. 1, turned
was pointed out. The question whether a citizen of Porto Rico,
under the treaty of cession and the Act of April 12, 1900, came
within the Immigration Law of March 3, 1891, was purely a question
of law which, being decided in the negative, all questions of fact
became immaterial.
In the present case, alienage was conceded, and was not in
dispute, and it was the question of fact thereupon arising that was
passed on by the board, and by the Secretary on appeal.
Whether rested on the accepted principle of international law
that every sovereign nation has the power, as inherent in
sovereignty and essential to self-preservation, to forbid the
entrance of foreigners within its dominions, or to admit them only
in such cases and upon such conditions as it may see fit to
prescribe, or on the power to regulate commerce with foreign
nations, which includes the entrance of ships, the importation of
goods, and the bringing of persons into the ports of the United
States, the act before us is not open to constitutional objection.
And while we held in
Wong Wing v. United States,
163 U. S. 228, a
certain provision of an immigration law invalid on that ground,
this act does not come within the ruling.
In that case, Mr.Justice Shiras, speaking for the Court,
said:
"We regard it as settled by our previous decisions that the
Page 194 U. S. 291
United States can, as a matter of public policy, by
Congressional enactment, forbid aliens or classes of aliens from
coming within their borders, and expel aliens or classes of aliens
from their territory, and can, in order to make effectual such
decree of exclusion or expulsion, devolve the power and duty of
identifying and arresting the persons included in such decree, and
causing their deportation, upon executive or subordinate
officials."
"But when Congress sees fit to further promote such a policy by
subjecting the persons of such aliens to infamous punishment at
hard labor, or by confiscating their property, we think such
legislation, to be valid, must provide for a judicial trial to
establish the guilt of the accused. No limits can be put by the
courts upon the power of Congress to protect, by summary methods,
the country from the advent of aliens whose race or habits render
them undesirable as citizens, or to expel such if they have already
found their way into our land, and unlawfully remain therein. But
to declare unlawful residence within the country to be an infamous
crime, punishable by deprivation of liberty and property, would be
to pass out of the sphere of constitutional legislation unless
provision were made that the fact of guilt should first be
established by a judicial trial. It is not consistent with the
theory of our government that the legislature should, after having
defined an offense as an infamous crime, find the fact of guilt,
and adjudge the punishment, by one of its own agents."
Detention or temporary confinement as part of the means
necessary to give effect to the exclusion or expulsion was held
valid, but so much of the act of 1892 as provided for imprisonment
at hard labor without a judicial trial was held to be
unconstitutional. The cases of
Chae Chan Ping, Fong Yue
Ting and
Lem Moon Sing were carefully considered and
applied.
We do not feel called upon to reconsider these decisions, and
they dispose of the specific contentions as to the application of
the Fifth and Sixth Amendments, and Section 1 of Article III, and
the denial of the delegation to the general government of
Page 194 U. S. 292
the power to enact this law. But it is said that the act
violates the First Amendment, which prohibits the passage of any
law
"respecting an establishment of religion, or prohibiting the
free exercise thereof; or abridging the freedom of speech, or of
the press; or the right of the people peaceably to assembly, and to
petition the government for a redress of grievances."
We are at a loss to understand in what way the act is obnoxious
to this objection. It has no reference to an establishment of
religion, nor does it prohibit the free exercise thereof; nor
abridge the freedom of speech or of the press; nor the right of the
people to assemble and petition the government for a redress of
grievances. It is, of course, true that if an alien is not
permitted to enter this country, or, having entered contrary to
law, is expelled, he is in fact cut off from worshipping or
speaking or publishing or petitioning in the country; but that is
merely because of his exclusion therefrom. He does not become one
of the people to whom these things are secured by our Constitution
by an attempt to enter, forbidden by law. To appeal to the
Constitution is to concede that this is a land governed by that
supreme law, and as under it the power to exclude has been
determined to exist, those who are excluded cannot assert the
rights in general obtaining in a land to which they do not belong
as citizens or otherwise.
Appellant's contention really comes to this: that the act is
unconstitutional so far as it provides for the exclusion of an
alien because he is an anarchist.
The argument seems to be that, conceding that Congress has the
power to shut out any alien, the power nevertheless does not extend
to some aliens, and that, if the act includes all alien anarchists,
it is unconstitutional, because some anarchists are merely
political philosophers whose teachings are beneficial, rather than
otherwise.
Counsel give these definitions from the Century Dictionary:
"ANARCHY. Absence or insufficiency of government; a state of
society in which there is no capable supreme power, and in which
the several functions of the state are performed badly or
Page 194 U. S. 293
not at all; social and political confusion. Specifically -- 2. A
social theory which regards the union of order with the absence of
all direct government of man by man as the political ideal;
absolute individual liberty. -- 3. Confusion in general."
"ANARCHIST. 1. Properly, one who advocates anarchy or the
absence of government as a political ideal; a believer in an
anarchic theory of society; especially, an adherent of the social
theory of Proudhon. (See Anarchy, 2). 2. In popular use, one who
seeks to overturn by violence all constituted forms and
institutions of society and government, all law and order, and all
rights of property, with no purpose of establishing any other
system of order in the place of that destroyed; especially, such a
person when actuated by mere lust of plunder. 3. Any person who
promotes disorder or excites revolt against an established rule,
law, or custom."
And Huxley is quoted assaying:
"Anarchy, as a term of political philosophy, must be taken only
in its proper sense, which has nothing to do with disorder or with
crime, but denotes a state of society in which the rule of each
individual by himself is the only government the legitimacy of
which is recognized."
The language of the act is
"anarchists, or persons who believe in or advocate the overthrow
by force or violence of the government of the United States or of
all government or of all forms of law, or the assassination of
public officials."
If this should be construed as defining the word "anarchists" by
the words which follow, or as used in the popular sense above
given, it would seem that, when an alien arrives in this country
who avows himself to be an anarchist, without more, he accepts the
definition. And we suppose counsel does not deny that this
government has the power to exclude an alien who believes in or
advocates the overthrow of the government or of all governments by
force or the assassination of officials. To put that question is to
answer it.
And if the judgment of the board and the Secretary was that
Turner came within the act as thus construed, we cannot
Page 194 U. S. 294
hold as matter of law that there was no evidence on which that
conclusion could be rested. Even if Turner, though he did not so
state to the board, only regarded the absence of government as a
political ideal, yet when he sought to attain it by advocating, not
simply for the benefit of workingmen, who are justly entitled to
repel the charge of desiring the destruction of law and order, but
"at any rate, as an anarchist," the universal strike to which he
referred, and by discourses on what he called "The Legal Murder of
1887,"
Spies v. People, 122 Ill. 1, and by addressing mass
meetings on that subject in association with Most,
Queen v.
Most, 7 Q.B. Div. 244;
People v. Most, 171 N.Y. 423,
we cannot say that the inference was unjustifiable either that he
contemplated the ultimate realization of his ideal by the use of
force or that his speeches were incitements to that end.
If the word "anarchists" should be interpreted as including
aliens whose anarchistic views are professed as those of political
philosophers, innocent of evil intent, it would follow that
Congress was of opinion that the tendency of the general
exploitation of such views is so dangerous to the public weal that
aliens who hold and advocate them would be undesirable additions to
our population, whether permanently or temporarily, whether many or
few; and, in the light of previous decisions, the act, even in this
aspect, would not be unconstitutional, as applicable to any alien
who is opposed to all organized government.
We are not to be understood as depreciating the vital importance
of freedom of speech and of the press, or as suggesting limitations
on the spirit of liberty, in itself, unconquerable, but this case
does not involve those considerations. The flaming brand which
guards the realm where no human government is needed still bars the
entrance, and as lone as human governments endure, they cannot be
denied the power of self-preservation, as that question is
presented here.
Reference was made by counsel to the Alien Law of June 25, 1798,
1 Stat. 570, c. 58, but we do not think that the controversy
Page 194 U. S. 295
over that law (and the sedition law) and the opinions expressed
at the time against its constitutionality have any bearing upon
this case, which involves an act couched in entirely different
terms and embracing an entirely different purpose. As Mr. Justice
Field remarked in the
Chinese Exclusion Case, 130
U. S. 610:
"The act was passed during a period of great political
excitement, and it was attacked and defended with great zeal and
ability. It is enough, however, to say that it is entirely
different from the act before us, and the validity of its
provisions was never brought to the test of judicial decision in
the courts of the United States."
Order affirmed.
MR. JUSTICE BREWER, concurring:
In view of the range of discussion in the argument of this case
at the bar, I feel justified in adding a few words to what has been
said by THE CHIEF JUSTICE.
First. I fully indorse and accentuate the conclusions of the
Court, as disclosed by the opinion, that, notwithstanding the
legislation of Congress, the courts may and must, when properly
called upon by petition in habeas corpus, examine and determine the
right of any individual restrained of his personal liberty to be
discharged from such restraint. I do not believe it within the
power of Congress to give to ministerial officers of final
adjudication of the right to liberty, or to oust the courts from
the duty of inquiry respecting both law and facts. "The privilege
of the writ of habeas corpus shall not be suspended, unless when,
in cases of rebellion or invasion, the public safety may require
it." Const. Art. I, sec. 9, clause 2.
Second. While undoubtedly the United States as a nation has all
the powers which inhere in any nation, Congress is not authorized
in all things to act for the nation, and too little effect has been
given to the Tenth Article of the amendments to the Constitution
that
"the powers not delegated to the United States by the
Constitution, nor prohibited by it to the
Page 194 U. S. 296
states, are reserved to the states respectively, or to the
people."
The powers the people have given to the general government are
named in the Constitution, and all not there named, either
expressly or by implication, are reserved to the people, and can be
exercised only by them, or upon further grant from them.
Third. No testimony was offered on the hearing before the
circuit court other than that taken before the immigration board of
inquiry, and none before such board save that preserved in its
report. Hence, the facts must be determined by that evidence. It is
not an unreasonable deduction therefrom that petitioner is an
anarchist in the commonly accepted sense of the term -- one who
urges and seeks the overthrow by force of all government. If that
be not the fact, he should have introduced testimony to establish
the contrary. It is unnecessary, therefore, to consider what rights
he would have if he were only what is called, by way of
differentiation, a philosophical anarchist -- one who simply
entertains and expresses the opinion that all government is a
mistake, and that society would be better off without any.
