Even though the Fifth Amendment does apply to one seeking
entrance to this country, and to deny him admission may deprive him
of liberty, due process of law does not necessarily require a
judicial trial, and Congress may entrust the decision of his right
to enter to an executive officer.
Under the Chinese exclusion and the immigration laws, where a
person of Chinese descent asks admission to the United States,
claiming that he is a native born citizen thereof, and the lawfully
designated officers finds that he is not, and upon appeal that
finding is approved by the Secretary of Commerce and Labor, and it
does not appear that there was any abuse of discretion, such
finding and action of the executive officers should be treated by
the courts as having been made by a competent tribunal, with due
process of law, and as final and conclusive, and in habeas corpus
proceedings, commenced thereafter and based solely on the ground of
the applicant's alleged citizenship, the court should dismiss the
writ and not direct new and further evidence as to the question of
citizenship.
A person whose right to enter the United States is questioned
under the immigration laws is to be regarded as if he had stopped
at the limit of its jurisdiction, although physically he may be
within its boundaries.
The facts are stated in the opinion.
Page 198 U. S. 258
MR. JUSTICE HOLMES delivered the opinion of the Court.
This case come here on a certificate from the circuit court of
appeals presenting certain questions of law. It appears that the
appellee, being detained by the master of the steamship
Doric for return to China, presented a petition for habeas
corpus to the district court, alleging that he was a native-born
citizen of the United States returning after a temporary
Page 198 U. S. 259
departure, and was denied permission to land by the collector of
the port of San Francisco. It also appears from the petition that
he took an appeal from the denial, and that the decision was
affirmed by the Secretary of Commerce and Labor. No further grounds
are stated. The writ issued, and the United States made return and
answered, showing all the proceedings before the Department, which
are not denied to have been in regular form, and setting forth all
of the evidence and the orders made. The answer also denied the
allegations of the petition. Motions to dismiss the writ were made
on the grounds that the decision of the Secretary was conclusive,
and that no abuse of authority was shown. These were denied, and
the district court decided, seemingly on new evidence, subject to
exceptions, that Ju Toy was a native-born citizen of the United
States. An appeal was taken to the circuit court of appeals,
alleging errors the nature of which has been indicated. Thereupon
the latter court certified the following questions:
"First. Should a district court of the United States grant a
writ of habeas corpus in behalf of a person of Chinese descent
being held for return to China by the steamship company which
brought him therefrom, who, having recently arrived at a port of
the United States, made application to land as a native-born
citizen thereof, and who, after examination by the duly authorized
immigration officers, was found by them not to have been born in
the United States, was denied admission, and ordered deported,
which finding and action upon appeal was affirmed by the Secretary
of Commerce and Labor, when the foregoing facts appear to the
court, and the petition for the writ alleges unlawful detention on
the sole ground that petitioner does not come within the
restrictions of the Chinese exclusion acts, because born in and a
citizen of the United States, and does not allege or show in any
other way unlawful action or abuse of their discretion or powers by
the immigration officers who excluded him?"
"Second. In a habeas corpus proceeding, should a district
Page 198 U. S. 260
court of the United States dismiss the writ, or should it direct
a new or further hearing upon evidence to be presented where the
writ had been granted in behalf of a person of Chinese descent
being held by the steamship company for return to China, from
whence it brought him, who recently arrived from that country, and
asked permission to land, upon the ground that he was born in and
was a citizen of the United States, when the uncontradicted return
and answer show that such person was granted a hearing by the
proper immigration officers, who found he was not born in the
United States, that his application for admission was considered
and denied by such officers, and that the denial was affirmed upon
appeal to the Secretary of Commerce and Labor, and where nothing
more appears to show that such executive officers failed to grant a
proper hearing, abused their discretion, or acted in any unlawful
or improper way upon the case presented to them for
determination?"
"Third. In a habeas corpus proceeding in a district court of the
United States, instituted in behalf of a person of Chinese descent
being held for return to China by the steamship company which
recently brought him therefrom to a port of the United States, and
who applied for admission therein upon the ground that he was a
native-born citizen thereof, but who, after a hearing, the lawfully
designated immigration officers found was not born therein, and to
whom they denied admission, which finding and denial, upon appeal
to the Secretary of Commerce and Labor, was affirmed, should the
court treat the finding and action of such executive officers upon
the question of citizenship and other questions of fact as having
been made by a tribunal authorized to decide the same, and as final
and conclusive unless it be made affirmatively to appear that such
officers, in the case submitted to them, abused the discretion
vested in them, or, in some other way, in hearing and determining
the same, committed prejudicial error?"
We assume in what we have to say, as the questions assume
Page 198 U. S. 261
that no abuse of authority of any kind is alleged. That being
out of the case, the first of them is answered by the case of
United States v. Sing Tuck, 194 U.
S. 161,
194 U. S. 170:
"A petition for habeas corpus ought not to be entertained unless
the court is satisfied that the petitioner can make out at least a
prima facie case." This petition should have been denied
on this ground, irrespective of what more we have to say, because
it alleged nothing except citizenship. It disclosed neither abuse
of authority nor the existence of evidence not laid before the
Secretary. It did not even set forth that evidence, or allege its
effect. But, as it was entertained, and the district court found
for the petitioner, it would be a severe measure to order the
petition to be dismissed on that ground now, and we pass on to
further considerations.
The broad question is presented whether or not the decision of
the Secretary of Commerce and Labor is conclusive. It was held in
United States v. Sing Tuck, 194 U.
S. 161,
194 U. S. 167,
that the Act of August 18, 1894, 28 Stat. 372, 390, purported to
make it so, but whether the statute could have that effect
constitutionally was left untouched, except by a reference to cases
where an opinion already had been expressed. To quote the latest
first, in
The Japanese Immigrant Case, 189 U. S.
86,
189 U. S. 97, it
was said:
"That Congress may exclude aliens of a particular race from the
United States, prescribe the terms and conditions upon which
certain classes of aliens may come to this country, establish
regulations for sending out of the country such aliens as come here
in violation of law, and commit the enforcement of such provisions,
conditions, and regulations exclusively to executive officers,
without judicial intervention are principles firmly established by
the decisions of this Court."
See also Turner v. Williams, 194 U.
S. 279,
194 U. S.
290-291;
Chin Bak Kan v. United States,
186 U. S. 193,
186 U. S. 200.
In
Fok Young Yo v. United States, 185 U.
S. 296,
185 U. S.
304-305, it was held that the decision of the collector
of customs on the right of transit
Page 198 U. S. 262
across the territory of the United States was conclusive, and,
still more to the point, in
Lem Moon Sing v. United
States, 158 U. S. 538,
where the petitioner for habeas corpus alleged facts which, if
true, gave him a right to enter and remain in the country, it was
held that the decision of the collector was final as to whether or
not he belonged to the privileged class.
It is true that it may be argued that these cases are not
directly conclusive of the point now under decision. It may be said
that the parties concerned were aliens, and that, although they
alleged absolute rights, and facts which it was contended went to
the jurisdiction of the officer making the decision, still their
rights were only treaty or statutory rights, and therefore were
subject to the implied qualification imposed by the later statute,
which made the decision of the collector with regard to them final.
The meaning of the cases, and the language which we have quoted, is
not satisfied by so narrow an interpretation, but we do not delay
upon them. They can be read.
It is established, as we have said, that the act purports to
make the decision of the Department final, whatever the ground on
which the right to enter the country is claimed -- as well when it
is citizenship as when it is domicil -- and the belonging to a
class excepted from the exclusion acts.
United States v. Sing
Tuck, 194 U. S. 161,
194 U. S. 167;
Lem Moon Sing v. United States, 158 U.
S. 538,
158 U. S.
546-547. It also is established by the former case and
others which it cites that the relevant portion of the Act of
August 18, 1894, c. 301, is not void as a whole. The statute has
been upheld and enforced. But the relevant portion being a single
section, accomplishing all its results by the same general words,
must be valid as to all that it embraces, or altogether void. An
exception of a class constitutionally exempted cannot be read into
those general words merely for the purpose of saving what remains.
That has been decided over and over again.
United States v.
Reese, 92 U. S. 214,
92 U. S. 221;
Trade-Mark Cases, 100 U. S. 82,
100 U. S. 98-99;
Allen v.
Page 198 U. S. 263
Louisiana, 103 U. S. 80,
103 U. S. 84;
United States v. Harris, 106 U. S. 629,
106 U. S.
641-642;
Poindexter v. Greenhow, 114 U.
S. 269,
114 U. S. 305;
Baldwin v. Franks, 120 U. S. 678,
120 U. S.
685-689;
Smiley v. Kansas, 196 U.
S. 447,
196 U. S. 455.
It necessarily follows that, when such words are sustained, they
are sustained to their full extent.
In view of the cases which we have cited it seems no longer open
to discuss the question propounded as a new one. Therefore, we do
not analyze the nature of the right of a person presenting himself
at the frontier for admission.
In re Ross, 140 U.
S. 453,
140 U. S. 464.
But it is not improper to add a few words. The petitioner, although
physically within our boundaries, is to be regarded as if he had
been stopped at the limit of our jurisdiction, and kept there while
his right to enter was under debate. If, for the purpose of
argument, we assume that the Fifth Amendment applies to him, and
that to deny entrance to a citizen is to deprive him of liberty, we
nevertheless are of opinion that with regard to him due process of
law does not require judicial trial. That is the result of the
cases which we have cited, and the almost necessary result of the
power of Congress to pass exclusion laws. That the decision may be
entrusted to an executive officer, and that his decision is due
process of law, was affirmed and explained in
Nishimura Ekiu v.
United States, 142 U. S. 651,
142 U. S. 660,
and in
Fong Yue Ting v. United States, 149 U.
S. 698,
149 U. S. 713,
before the authorities to which we already have referred. It is
unnecessary to repeat the often-quoted remarks of Mr. Justice
Curtis, speaking for the whole Court in
Murray's
Lessee v. Hoboken Land & Improvement Co., 18
How. 272,
59 U. S. 280,
to show that the requirement of a judicial trial does not prevail
in every case.
Lem Moon Sing v. United States,
158 U. S. 538,
158 U. S.
546-547;
Japanese Immigrant Case, 189 U. S.
86,
189 U. S. 100;
Public Clearing House v. Coyne, 194 U.
S. 497,
194 U. S.
508-509.
We are of opinion that the first question should be answered,
no; that the third question should be answered yes, with the result
that the second question should be answered
Page 198 U. S. 264
that the writ should be dismissed, as it should have been
dismissed in this case.
It will be so certified.
MR. JUSTICE BREWER, dissenting:
I am unable to concur in the views expressed in the foregoing
opinion, and, believing the matter of most profound importance, I
give my reasons therefor.
Ju Toy presented his petition to the United States district
court at San Francisco, alleging that he was a native-born citizen
of the United States; that he was a resident of the United States,
temporarily absent, and returning to the city and state in which he
was born; that the collector of the port of San Francisco refused
to permit him to land, and that he was detained by the general
manager of the steamship company in which he came to San Francisco,
with a view to his return to China. A writ of habeas corpus was
issued, and thereupon the district attorney, in behalf of the
United States, answered, setting up the application for landing, a
hearing and denial thereof by the immigration officer, an appeal to
the Secretary of Commerce and Labor, and his action approving that
of the immigration officer, and with the answer exhibited a copy of
all the evidence offered upon the hearing, and the orders by the
officer and the Secretary. Thereupon a motion was made by the
district attorney to dismiss the writ on the ground substantially
that it did not appear that the immigration officer or the
Secretary of Commerce and Labor abused the discretion vested in
them by law, or that their action was unlawful or that any error
prejudicial to the petitioner was committed. This motion to dismiss
was overruled, and the cause referred to a referee to take
evidence. Upon the testimony taken by him the referee reported that
the petitioner was born in the United States and a citizen thereof.
Exceptions to this report were filed by the district
Page 198 U. S. 265
attorney, which were overruled by the court, and thereupon
judgment was entered that the petitioner was illegally restrained
of his liberty, and that he be discharged from custody. An appeal
from this order was taken to the Court of Appeals for the Ninth
Circuit, which court certified to us the following questions:
"First. Should a district court of the United States grant a
writ of habeas corpus in behalf of a person of Chinese descent
being held for return to China by the steamship company which
brought him therefrom, who, having recently arrived at a port of
the United States, made application to land as a native-born
citizen thereof, and who, after examination by the duly authorized
immigration officers, was found by them not to have been born in
the United States, was denied admission, and ordered deported,
which finding and action upon appeal was affirmed by the Secretary
of Commerce and Labor, when the foregoing facts appear to the
court, and the petition for the writ alleges unlawful detention on
the sole ground that petitioner does not come within the
restrictions of the Chinese exclusion acts, because born in and a
citizen of the United States, and does not allege or show in any
other way unlawful action or abuse of their discretion or powers by
the immigration officers who excluded him?"
"Second. In a habeas corpus proceeding, should a district court
of the United States dismiss the writ or should it direct a new or
further hearing upon evidence to be presented, where the writ had
been granted in behalf of a person of Chinese descent being held by
the steamship company for return to China, from whence it brought
him, who recently arrived from that country, and asked permission
to land, upon the ground that he was born in and was a citizen of
the United States, when the uncontradicted return and answer show
that such person was granted a hearing by the proper immigration
officers, who found he was not born in the United States, that his
application for admission was considered and denied by such
officers, and that the denial was affirmed upon appeal to
Page 198 U. S. 266
the Secretary of Commerce and Labor, and where nothing more
appears to show that such executive officers failed to grant a
proper hearing, abused their discretion, or acted in any unlawful
or improper way upon the case presented to them for
determination?"
"Third. In a habeas corpus proceeding in a district court of the
United States instituted in behalf of a person of Chinese descent
being held for return to China by the steamship company which
recently brought him therefrom to a port of the United States, and
who applied for admission therein upon the ground that he was a
native-born citizen thereof, but who, after a hearing, the lawfully
designated immigration officers found was not born therein, and to
whom they denied admission, which finding and denial, upon appeal
to the Secretary of Commerce and Labor, was affirmed -- should the
court treat the finding and action of such executive officers upon
the question of citizenship and other questions of fact as having
been made by a tribunal authorized to decide the same, and as final
and conclusive unless it be made affirmatively to appear that such
officers, in the case submitted to them, abused the discretion
vested in them, or, in some other way, in hearing and determining
the same, committed prejudicial error?"
The proposition presented by these questions is that, unless the
petitioner for a writ of habeas corpus shows that the immigration
officers have been guilty of unlawful action or abuse of their
discretion or powers, the writ must be denied, and the petitioner
banished from the country. In order to see what action is lawful, I
refer to the rules prescribed under the authority hereinafter
referred to. Rule 6 declares that,
"immediately upon the arrival of Chinese persons . . . , it
shall be the duty of the officer . . . to adopt suitable means to
prevent communication with them by any persons other than the
officials under his control, to have said Chinese persons examined
promptly, as by law provided, touching their right to admission,
and to permit those proving such right to land."
Rules 7, 8, 9, 10, and 21 are as follows:
Page 198 U. S. 267
"RULE 7. The examination prescribed in Rule 6 should be separate
and apart from the public, in the presence of government officials
and such witness or witnesses only as the examining officer shall
designate, and if, upon the conclusion thereof, the Chinese
applicant for admission is adjudged to be inadmissible, he should
be advised of his right of appeal, and his counsel should be
permitted, after duly filing notice of appeal, to examine, but not
make copies of, the evidence upon which the excluding decision is
based."
"RULE 8. Every Chinese person refused admission under the
provisions of the exclusion laws by the decision of the officer in
charge at the port of entry must, if he shall elect to take an
appeal to the Secretary, give written notice thereof to said
officer within two days after such decision is rendered."
"RULE 9. Notice of appeal provided for in Rule 8 shall act as a
stay upon the disposal of the Chinese person whose case is thereby
affected until a final decision is rendered by the Secretary; and,
within three days after the filing of such notice, unless further
delay is required to investigate and report upon new evidence, the
complete record of the case, together with such briefs, affidavits,
and statements as are to be considered in connection therewith,
shall be forwarded to the Commissioner General of Immigration by
the officer in charge at the port of arrival, accompanied by his
views thereon in writing; but on such appeal no evidence will be
considered that has not been made the subject of investigation and
report by the said officer in charge."
"RULE 10. Additional time for the preparation of cases after the
expiration of three days next succeeding the filing of notice of
appeal will be allowed only in those instances in which, in the
judgment of said office in charge, a literal compliance with Rule 9
would occasion injustice to the appellant, or the risk of defeat of
the purposes of the law, and the reasons for delay beyond the time
prescribed shall, in every instance, be stated in writing in the
papers forwarded to the Commissioner General of Immigration. "
Page 198 U. S. 268
"RULE 21. The burden of proof in all cases rests upon Chinese
persons claiming the right of admission to or residence within the
United States to establish such right affirmatively and
satisfactorily to the appropriate government officers, and in no
case in which the law prescribes the nature of the evidence to
establish such right shall other evidence be accepted in lieu
thereof, and in every doubtful case the benefit of the doubt shall
be given by administrative officers to the United States
government."
It will be seen that, under these rules, it is the duty of the
immigration officer to prevent communication with the Chinese
seeking to land by any one except his own officers. He is to
conduct a private examination, with only the witnesses present whom
he may designate. His counsel, if, under the circumstances, the
Chinaman has been able to procure one, is permitted to look at the
testimony, but not to make a copy of it. He must give notice of
appeal, if he wishes one, within two days, and within three days
thereafter the record is to be sent to the Secretary at Washington,
and every doubtful question is to be settled in favor of the
government. No provision is made for summoning witnesses from a
distance or for taking depositions, and, if, for instance, the
person landing at San Francisco was born and brought up in Ohio, it
may well be that he would be powerless to find any testimony in San
Francisco to prove his citizenship. If he does not happen to have
money, he must go without the testimony, and when the papers are
sent to Washington (3,000 miles away from the port, which, in this
case, was the place of landing), he may no have the means of
employing counsel to present his case to the Secretary. If this be
not a star-chamber proceeding of the most stringent sort, what more
is necessary to make it one?
I do not see how any one can read those rules and hold that they
constitute due process of law for the arrest and deportation of a
citizen of the United States. If they do in proceedings by the
United States, they will also in proceedings instituted
Page 198 U. S. 269
by a state, and an obnoxious class may be put beyond the
protection of the Constitution by ministerial officers of a state,
proceeding in strict accord with exactly similar rules.
It will be borne in mind that the petitioner has been judicially
determined to be a free-born American citizen, and the contention
of the government, sustained by the judgment of this Court, is that
a citizen, guilty of no crime -- for it is no crime for a citizen
to come back to his native land -- must, by the action of a
ministerial officer, be punished by deportation and banishment,
without trial by jury and without judicial examination.
Such a decision is, to my mind, appalling. By all the
authorities the banishment of a citizen is punishment, and
punishment of the severest kind. In
Fong Yue Ting v. United
States, 149 U. S. 698, it
was held by a majority of the Court that the removal from the
country of an alien was not punishment, Mr. Justice Gray, speaking
for the majority, saying (p.
149 U. S.
730):
"The proceeding before a United States judge, as provided for in
section 6 of the act of 1892, is in no proper sense a trial and
sentence for a crime or offense. It is simply the ascertainment, by
appropriate and lawful means, of the fact whether the conditions
exist upon which Congress has enacted that an alien of this class
may remain within the country. The order of deportation is not a
punishment for crime. It is not a banishment in the sense in which
that word is often applied to the expulsion of a citizen from his
country by way of punishment."
But it was not suggested, and indeed could not be, that the
deportation and exile of a citizen was not punishment. The forcible
removal of a citizen from his country is spoken of as banishment,
exile, deportation, relegation, or transportation; but, by whatever
name called, it is always considered a punishment. In Black's Law
Dictionary, "banishment" is defined as
"a punishment inflicted upon criminals, by compelling them to
quit a city, place, or country for a specific period of time
Page 198 U. S. 270
or for life. It is inflicted principally upon political
offenders, 'transportation' being the word used to express a
similar punishment of ordinary criminals."
The same author defines "exile" as banishment, and
"transportation" as
"a species of punishment consisting in removing the criminal
from his own country to another (usually a penal colony), there to
remain in exile for a prescribed period."
In Rapalje & Lawrence's Law Dictionary (vol. 1, page 109),
"banishment" is called:
"A punishment by forced exile, either for years or for life;
inflicted principally upon political offenders, 'transportation'
being the word used to express a similar punishment of ordinary
criminals."
In 4 Bl.Com. 377, it is said: "Some punishments consist in exile
or banishment, by abjuration of the realm, or transportation."
Vattel, Nations, bk. 1, ยง 228, declares:
"As a man may be deprived of any right whatsoever by way of
punishment; exile, which deprives him of the right of dwelling in a
certain place, may be inflicted as a punishment; banishment is
always one, for a mark of infamy cannot be set on any one but with
a view of punishing him for a fault, either real or pretended."
President Madison, in his report on the Virginia resolutions
concerning the alien and sedition laws, said (4 Elliott's Debates
455), referring to the possibilities which attend a removal from
the country,
"if a banishment of this sort be not a punishment, and among the
severest of punishments, it will be difficult to imagine a doom to
which the name can be applied."
The twelfth section of the English Habeas Corpus Act, 31 Car.
II, one of the three great muniments of English liberty,
enacted
"that no subject of this realm, that now is or hereafter shall
be an inhabitant or resident of this kingdom of England, dominion
of Wales, or Town of Berwick-upon-Tweed, shall or may be sent
prisoner into Scotland, Ireland, Jersey, Guernsey, Tangier, or into
parts, garrisons, islands, or places beyond the seas, which are or
at any time hereafter shall be within or without the dominions of
his majesty, his heirs or successors;
Page 198 U. S. 271
and that every such imprisonment is hereby enacted and adjudged
to be illegal, . . . and the person or persons who shall knowingly
frame, contrive, write, seal, or countersign any warrant for such
commitment, detainer, or transportation, or shall so commit,
detain, imprison, or transport any person or persons, contrary to
this act, or be any ways advising, aiding, or assisting therein,
being lawfully convicted thereof shall be disabled from thenceforth
to bear any office of trust or profit within the said realm of
England, dominion of Wales, or Town of Berwick-upon-Tweed, or any
of the islands, territories, or dominions thereunto belonging, and
shall incur and sustain the pains, penalties, and forfeitures
limited, ordained, and provided in and by statute of provision and
praemunire, made in the sixteenth year of King Richard
II., and be incapable of any pardon from the king, his heirs or
successors, of the said forfeitures, losses, or disabilities, or
any of them."
It is true in this case the petitioner was returning to San
Francisco from China. Whether his absence from this country had
been for a few weeks or a few years is not shown, nor does it
matter. The right of a citizen is not lost by a temporary absence
from his native land, and when he returns he is entitled to all the
protection which he had when he left.
In
Gonzales v. Williams, 192 U. S.
1, the petitioner, held in custody by the immigration
officers, sued out a habeas corpus on the ground that she was not
an alien immigrant. The circuit court decided against her, but on
appeal we discharged her from custody, saying (p.
192 U. S. 7):
"If she was not an alien immigrant within the intent and meaning
of the act of Congress entitled 'An Act in Amendment of the Various
Acts Relative to Immigration and the Importation of Aliens under
Contract or Agreement to Perform Labor,' approved March 3, 1891, 26
Stat. 1084, c. 551, the commissioner had no power to detain or
deport her, and the final order of the circuit court must be
reversed."
It is true, the facts were admitted. So placing that case
Page 198 U. S. 272
alongside of this, the result is that, if the United States
admits that the petitioner is not an alien, he is entitled to his
discharge. If he proves the fact, he is not entitled, but must be
deported. It was not suggested in that case that the immigration
officer had been guilty of any abuse of discretion or powers, the
only complaint being that he had ordered the deportation of the
petitioner, who was not an alien. That same fact is alleged here,
but, is now adjudged insufficient to prevent the deportation. In
Gee Fook Sing v. United States, 49 F. 146, 148, the Court
of Appeals of the Ninth Circuit held:
"That any person alleging himself to be a citizen of the United
States, and desiring to return to his country from a foreign land,
and that he is prevented from doing so without due process of law,
and who, on that ground, applies to any United States court for a
writ of habeas corpus, is entitled to have a hearing and a judicial
determination of the facts so alleged, and that no act of Congress
can be understood or construed as a bar to such hearing and
judicial determination."
See also In re Look Tin Sing, 21 F. 905;
Ex Parte
Chan San Hee, 35 F. 354;
In re Yung Sing Hee, 36 F.
437;
In re Wy Shing, 36 F. 553. In the first of these
cases, it was said by Mr. Justice Field (p. 361):
"Being a citizen, the law could not intend that he should ever
look to the government of a foreign country for permission to
return to the United States, and no citizen can be excluded from
this country except in punishment for crime. Exclusion for any
other cause is unknown to our laws, and beyond the power of
Congress."
In
Ex Parte Tom Tong, 108 U. S. 556,
108 U. S. 559,
Mr. Chief Justice Waite said: "The writ of habeas corpus is the
remedy which the law gives for the enforcement of the civil right
of personal liberty."
In
United States v. Jung Ah Lung, 124 U.
S. 621, a petition for habeas corpus by a Chinese
laborer, it was held that:
Page 198 U. S. 273
"The jurisdiction of the court was not affected by the fact that
the collector had passed on the question of allowing the person to
land, or by the fact that the treaty provides for diplomatic action
in case of a hardship."
By the Fifth Amendment to the Constitution, no person can "be
deprived of life, liberty, or property without due process of law."
It may be true, as decided in
Murray's Lessee v. Hoboken
Land & Improvement Co., 18 How. 272, an action
involving the validity of a distress warrant issued by the
Solicitor of the Treasury, that the requirement of a judicial trial
does not extend to every case, but, as stated by Mr. Justice Curtis
in that case (p.
59 U. S.
284):
"To avoid misconstruction upon so grave a subject, we think it
proper to state that we do not consider Congress can either
withdraw from judicial cognizance any matter which, from its
nature, is the subject of a suit at the common law, or in equity or
admiralty; nor, on the other hand, can it bring under the judicial
power a matter which, from its nature, is not a subject for
judicial determination."
And in
Hager v. Reclamation District, 111 U.
S. 701,
111 U. S. 708,
it was held that
"undoubtedly where life and liberty are involved, due process
requires that there be a regular course of judicial proceedings.
which imply that the party to be affected shall have notice and an
opportunity to be heard."
By Article III, sec. 2 of the Constitution, "the trial of all
crimes, except in cases of impeachment, shall be by jury;" and by
the Fifth Amendment, "no person shall be held to answer for a
capital or otherwise infamous crime unless on a presentment or
indictment of a grand jury."
Summing this up, banishment is a punishment, and of the severest
sort. There can be no punishment except for crime. This petitioner
has been guilty of no crime, and so judicially determined. Yet, in
defiance of this adjudication of innocence, with only an
examination before a ministerial officer, he is compelled to suffer
punishment as a criminal, and is denied the protection of either a
grand or petit jury.
But, it is said, that he did not prove his innocence before
Page 198 U. S. 274
the ministerial officer. Can one who judicially establishes his
innocence of any offense be punished for crime by the action of a
ministerial officer? Can he be punished because he has failed to
show to the satisfaction of that officer that he is innocent of an
offense? The Constitution declares that "the privilege of the writ
of habeas corpus shall not be suspended, unless when, in cases of
invasion or rebellion, the public safety may require it." There is
no rebellion or invasion. Can a citizen be deprived of the benefit
of that so much vaunted writ of protection by the action of a
ministerial officer?
By section 8 of the Act of September 13, 1888, 25 Stat. 476, the
act prohibiting the coming of Chinese laborers, the Secretary of
the Treasury was authorized to make rules and regulations to carry
into effect the provisions of the statute. This authority, by
subsequent legislation, has been vested in the Secretary of
Commerce and Labor, by whom some sixty-one rules have been
announced. In the second rule, it is provided that,
"if the Chinese person has been born in the United States,
neither the immigration acts nor the Chinese exclusion acts
prohibiting persons of the Chinese race, and especially Chinese
laborers, from coming into the United States, apply to such
person."
Rule 46 reads:
"The provisions of the laws regulating immigration, excluding
those which prescribe payment of the head tax, apply to the
residents and natives of Porto Rico and Philippine Islands, and,
moreover, the provisions of the laws relating to the exclusion of
Chinese apply to all such persons as are of the Chinese race,
except those who are born in the United States."
In other words, the Department rules exclude from the
jurisdiction of the immigration officers citizens of Chinese
descent, and limit that jurisdiction to Chinese aliens. In
United States v. Wong Kim Ark, 169 U.
S. 649, it is stated (p.
169 U. S.
653):
"It is conceded that, if he is a citizen of the United States,
the acts of Congress known as the Chinese exclusion acts,
prohibiting persons of the Chinese race, and especially Chinese
Page 198 U. S. 275
laborers, from coming into the United States, do not and cannot
apply to him."
By the Act of August 18, 1894, 28 Stat. 372, 390, it is provided
that,
"in every case where an alien is excluded from admission into
the United States under any law or treaty now existing or hereafter
made, the decision of the appropriate immigration or customs
officers, if adverse to the admission of such alien, shall be
final, unless reversed on appeal to the Secretary of the
Treasury."
The same limitation of finality to the case of aliens is
repeated in the Act of March 3, 1903, 32 Stat. 1213. So it appears
that this Court discharged from the custody of the immigration
officers a person of Chinese descent on the ground that he was a
citizen of the United States, doing this upon the concession of the
government that, if he was a citizen, the exclusion acts had no
application to him; that Congress in terms makes the decision of
the immigration officer final only when the party is an alien, and
that the rules prescribed by the proper department exclude from the
operation of the law citizens of the United States of Chinese
descent. Yet, in spite of all this, it is held that this citizen of
the United States must, by virtue of the ruling of a ministerial
officer, be banished from the country of which he is a citizen. And
this upon the ground that such officer has a right to decide
whether he is or is not a citizen, and his decision on the question
excludes all judicial examination.
Let us see what have been the rulings of this Court in other
cases and first in respect to judicial decisions. In
Thompson v.
Whitman, 18 Wall. 457, Thompson, a sheriff of a
county in New Jersey, was sued by Whitman for taking and carrying
away a sloop, the property of the plaintiff, and justified his
action by the judgment of the court, which had ordered the sloop to
be sold for violating a statute of New Jersey in reference to
raking and gathering clams. There was thus a judicial determination
of the liability of the sloop to seizure and condemnation.
Notwithstanding this judicial determination, this Court held that
the plaintiff might show, as a matter of fact,
Page 198 U. S. 276
that the sloop was not within the limits of the State of New
Jersey, and therefore was not violating its statute. In the opinion
by Mr. Justice Bradley, this quotation was made from the opinion of
Chief Justice Marshall in
Rose v.
Himely, 4 Cranch 269:
"Upon principle," says Chief Justice Marshall,
"it would seem that the operation of every judgment must depend
on the power of the court to render that judgment -- or, in other
words, on its jurisdiction over the subject matter, which it has
determined. In some cases, that jurisdiction unquestionably depends
as well on the state of the thing as on the constitution of the
court. If, by any means whatever, a prize court should be induced
to condemn, as prize of war, a vessel which was never captured, it
could not be contended that this condemnation operated a change of
property. Upon principle, then, it would seem that, to a certain
extent, the capacity of the court to act upon the thing condemned,
arising from its being within or without their jurisdiction as well
as the constitution of the court, may be considered by that
tribunal which is to decide on the effect of the sentence."
Rose's "Notes on United States Reports" show that a multitude of
cases, both state and federal, rely upon
Thompson v.
Whitman as authority. Among them is
Scott v. McNeal,
154 U. S. 34, in
which it was held that a court of probate, having jurisdiction in
the administration of deceased persons, had no jurisdiction to
appoint an administrator of one who was alive, although he had been
absent, and not heard from for seven years, and that a sale made by
the administrator appointed in such a case passed no title. It was
cited approvingly in
Andrews v. Andrews, 188 U. S.
14. There, a decree of divorce, rendered by a South
Dakota court, in a case in which both parties were in court, and in
which the court found not only that there were sufficient grounds
for divorce, but also that the plaintiff had been a
bona
fide resident of South Dakota for the statutory length of
time, and therefore had the requisite status to give that court
jurisdiction, could
Page 198 U. S. 277
be upset in Massachusetts by proof that the plaintiff was not in
fact a
bona fide resident of South Dakota. The same case
was also relied upon as authority in
Bell v. Bell,
181 U. S. 175,
181 U. S. 177,
where we said:
"No valid divorce from the bond of matrimony can be decreed on
constructive service by the courts of a state in which neither
party is domiciled. And by the law of Pennsylvania, every
petitioner for a divorce must have had a
bona fide
residence within the state for one year next before the filing of
the petition. . . . The recital in the proceedings in Pennsylvania
of the facts necessary to show jurisdiction may be contradicted.
Thompson
v. Whitman, 18 Wall. 457."
I have always supposed that a judgment of a court of competent
jurisdiction was at least as conclusive as the finding of a
ministerial officer, and that the right or personal liberty was as
sacred in the eyes of the law as the title to a sloop.
Turning now to the action of ministerial or administrative
officers, and what has been the uniform ruling of this Court? Take
the Land Department. Questions of fact within the undoubted
jurisdiction of that Department are considered as settled by its
rulings. But questions of fact upon which its jurisdiction rests
are never so regarded. Thus, whether a tract of public land be
swamp, mineral, or agricultural, may be finally determined by the
Department; but whether a tract is public land is not so
determined, and in all the multitude of cases that have been
presented to this Court it has never even been suggested that a
ruling of the Department that a tract was public land was
conclusive unless it appeared that the Land Department was guilty
of some abuse of its discretion or powers. The question, and the
only question, has been was the tract public land or not? In
United States v.
Stone, 2 Wall. 525, it appeared that a tract of
land adjacent to a military post had been at one time surveyed, and
by that survey was included within the military reservation.
Subsequently
Page 198 U. S. 278
a new survey was had, by which this tract was excluded, and
thereafter it was, in due course of administration, patented.
Thereupon this suit was brought to set aside the patent. It was not
suggested that the Land Department had been guilty of any
irregularity in administration, or had not proceeded in accordance
with the established rules of procedure, yet the Court unanimously
held that the patent must be set aside on the ground that the land
was reserved to the United States as a part of the military
reservation by the original survey. In
Smelting Co. v.
Kemp, 104 U. S. 636,
104 U. S. 641,
we said:
"Of course, when we speak of the conclusive presumptions
attending a patent for lands, we assume that it was issued in a
case where the Department had jurisdiction to act and execute it;
that is to say, in a case where the lands belonged to the United
States, and provision had been made by law for their sale. If they
never were public property, or had previously been disposed of, or
if Congress had made no provision for their sale, or had reserved
them, the Department would have no jurisdiction to transfer them,
and its attempted conveyance of them would be inoperative and void,
no matter with what seeming regularity the forms of law may have
been observed. The action of the Department would in that event be
like that of any other special tribunal not having jurisdiction of
a case which it had assumed to decide."
It would be an affectation to attempt to cite all the
authorities in which this doctrine is announced. In
Doolan v.
Carr, 125 U. S. 618,
decided in 1887, Mr. Justice Miller cites more than a dozen cases
as directly in point. Since then, the doctrine has been again and
again restated.
Take also the matter of imports. The Secretary of the Treasury
is charged with the collection of the duties on them, but has it
ever been held or even suggested that a ruling of the customhouse
officers, approved by the Secretary of the Treasury, is a final
determination that the article so passed upon was subject to duty,
and precluded the courts from inquiring
Page 198 U. S. 279
as to that fact? Certainly this Court has wasted a great deal of
time determining whether a given article was subject to duty or not
if the decision of the custom house officers, approved by the
Secretary of the Treasury, was a final decision of the
question.
But it is said that the exclusion acts speak of Chinese persons,
and that such term includes citizens as well as aliens, and
therefore Congress has given power to the immigration officers to
banish citizens of the United States if they happen to be of
Chinese descent. But obviously the statutes refer to citizens of
China, and not to citizens of the United States. The treaty of
1894, 28 Stat. 1210, in execution of which most of these statutes
were passed, speaks, on the one hand, of Chinese subjects in the
United States, and, on the other, of citizens of the United States
in China. The treaty declared the rights and burdens of Chinese
citizens in the United States, as well as the rights and burdens of
citizens of the United States in China. The treaty, then, placing
Chinese subjects over against American citizens, must have had in
mind citizenship, and not race. The legislation carrying that
treaty into effect must be interpreted in the light of that fact.
The statutes of the United States expressly limit the finality of
the determination of the immigration officers to the case of
aliens. It has been conceded by the government that these statutes
do not apply to citizens, and this Court made a most important
decision based upon that concession. The rules of the Department
declare that the statutes do not apply to citizens, and yet, in the
face of all this, we are told that they may be enforced against
citizens, and that Congress so intended. Banishment of a citizen
not merely removes him from the limits of his native land, but puts
him beyond the reach of any of the protecting clauses of the
Constitution. In other words, it strips him of all the rights which
are given to a citizen. I cannot believe that Congress intended to
provide that a citizen, simply because he belongs to an obnoxious
race, can be deprived of all the liberty and protection which the
Constitution
Page 198 U. S. 280
guarantees, and if it did so intend, I do not believe that it
has the power to do so.
MR. JUSTICE PECKHAM concurred in the foregoing dissent.
MR. JUSTICE DAY also dissented.