*171

enter the country as the necessarily sum- | United States, neither the immigration acts mary character of the proceedings will per- nor the Chinese exclusion acts prohibiting mit. persons of the Chinese race, and especially Chinese laborers, from coming into the United States, apply to such person." So this court has held at the present term. Gonzales v. Williams, 192 U. S. 1, ante, p. 177, 24 Sup. Ct. Rep. 177, decided January 4, 1904. In that case it appeared that Isabella Gonzales, an unmarried woman, coming from Porto Rico to New York, was prevented from landing, and detained by the immigration commissioner as an alien immigrant. A writ of habeas corpus was issued on her behalf by the circuit court of the United States for the southern district of New York. Upon a hearing the writ was dismissed and she remanded to the custody of the commissioner. On appeal to this court that decision was reversed, and it was said in the opinion (p. 7, ante, p. 177, 24 Sup. Ct. Rep. p. 177):

We are of opinion that the attempt to disregard and override the provisions of the statutes and the rules of the Department, and to swamp the courts by a resort to them in the first instance, must fail. We may add that, even if it is beyond the power of Congress to make the decision of the Department final upon the question of citizenship, we agree with the circuit court of appeals that 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. A mere allegation of citizenship is not enough. But, before the courts can be called upon, the preliminary sifting process provided by the statutes must be gone through with. Whether after that a further trial may be had we do not decide.

Judgment reversed.

Mr. Justice Brewer, with whom concurred Mr. Justice Peckham, dissenting:

I am unable to concur in either the foregoing opinion or judgment. I have heretofore dissented in several cases involving the exclusion or expulsion of the Chinese, but, although my views on the questions are unchanged, do not care to repeat anything then said. I pass rather to consider the present case and the declarations of the court. That is, as stated in the opinion, one of persons claiming to be citizens of the United States, denied by an inspector of immigration-a mere ministerial officer-the right to enter the country, and who are now informed by this court that their application to the courts for the enforcement of that right must be denied. They are told that their only remedy is by appeal from one ministerial officer to another.

"If she was not an alien immigrant within the intent and meaning of the act of Congress entitled 'An Act in Amendment to the Various Acts Relative to Immigration and the Importation of Aliens Under Contract or Agreement to Perform Labor,' approved March 3, 1891 (26 Stat. at L. 1084, chap. 551, U. S. Comp. Stat. 1901, p. 1294), the commissioner had no power to detain or deport her, and the final order of the circuit court must be reversed."

There, as here, the applicant had not appealed from the decision of the immigration officer to the Secretary of the Treasury; that fact was pleaded in the return to the writ, and on the argument before us this act of August 18, 1894, was cited by the government, and the argument made that the remedy was by appeal to the Secretary of the Treasury. I quote the language of the Solicitor General as reported (p. 4):

p.

"The act of August 18, 1894 (28 Stat. at The decision is based upon the act of Au- L. 390, chap. 301, U. S. Comp. Stat. 1901, gust 18, 1894 (28 Stat. at L. 390, chap. 301, 1303), makes the decision of the appropriU. S. Comp. Stat. 1901, p. 1303), which pro-ate immigration or customs officer, if adverse vides: to the admission of an alien, final unless re

"In every case where an alien is excluded versed on appeal to the Secretary of the from admission into the United States un- Treasury. Even if appellant herein was ul der any law or treaty now existing or here-timately entitled to a writ of habeas corpus, after made, the decision of the appropriate she was not in a position justly to obtain immigration or customs officers, if adverse the writ until she had prosecuted an unto the admission of such alien, shall be final, availing appeal to the Secretary of the unless reversed on appeal to the Secretary Treasury, and thus pursued her remedy in of the Treasury." the executive course to the uttermost."

But by its very terms that act applies That case did not hold that the applicant only to an alien, and these parties assert was a citizen of the United States, but only that they are not aliens. If not aliens, cer- that, being a subject of Porto Rico, an istainly that act is inapplicable. So affirms land ceded to the United States, and, as adRule 2, prescribed by the Secretary of Com-judged by a bare majority of this court in merce and Labor, concerning the immigration of Chinese persons, which reads: "If the Chinese person has been born in the

conflicting opinions, not within the full scope of constitutional protection, she was not an alien immigrant. Here the petition

*173

In Ex parte Royall, 117 U. S. 241, 251, 252, 29 L. ed. 868, 871, 6 Sup. Ct. Rep. 734, 740, 741, this court said:

ers claim that they are citizens by birth, I hold the Constitution of the United States, and the decision is that, nevertheless, they and enforce any rights granted by it. cannot be heard in a court to prove the fact which they allege. There the petition disclosed both a question of law and one of fact, for not until the return to the writ was the question of fact eliminated; here, on the face of the petition, only a question of fact is presented, for the law applicable had been fully settled by the decision of this court in United States v. Wong Kim Ark, 169 U. S. 649, 42 L. ed. 890, 18 Sup. Ct. Rep. 456.

"Does the statute imperatively require the circuit court, by writ of habeas corpus, to wrest the petitioner from the custody of the state officers in advance of his trial in the state court? We are of opinion that while the circuit court has the power to do so, and may discharge the accused in advance But it is said that, inasmuch as Congress of his trial if he is restrained of his liberty has provided for an appeal from the immi- in violation of the national Constitution, it gration officer to the Secretary of the Treas-is not bound in every case to exercise such ury, or, rather, since the recent act trans- a power immediately upon application being ferring jurisdiction to the Department of Commerce and Labor, to the Secretary of the latter department, the orderly administration of affairs requires that the remedy by appeal to the Secretary should be followed. It was not so held in the Gonzales Case, and I do not appreciate why it should be deemed necessary in the case of one claiming to be a citizen, and not deemed necessary in respect to one who is merely not an alien immigrant. We have called American citizenship an “inestimable heritage" (Chin Bak Kan v. United States, 186 U. S. 193, 200, 46 L. ed. 1121, 1125, 22 Sup. Ct. Rep. 891), and I cannot understand why one who claims it should be denied the earliest possible hearing in the courts upon the truth of his claim.

Why should any one who claims the right of citizenship be denied prompt access to the courts? If it be an "inestimable heritage," can Congress deprive one of the right to a judicial determination of its existence, and ought the courts to unnecessarily avoid or postpone an inquiry thereof? If it be said that the conduct of these petitioners before the inspector was not such as to justify a belief in the probability of their claim of citizenship, it is sufficient answer that they assert the claim and ask a right to be heard. I never supposed that courts could deny a party a hearing on the ground that they did not believe it probable that he could establish the claim which he makes.

made for the writ. We cannot suppose that Congress intended to compel those courts, by such means, to draw to themselves, in the first instance, the control of all criminal prosecutions commenced in state courts exercising authority within the same territorial limits, where the accused claims that he is held in custody in violation of the Constitution of the United States. The injunction to hear the case summarily, and thereupon 'to dispose of the party as law and justice require,' does not deprive the court of discretion as to the time and mode in which it will exert the powers conferred upon it. That discretion should be exercised in the light of the relations existing, under our system of government, between the ju. dicial tribunals of the Union and of the states, and in recognition of the fact that the public good requires that those relations be not disturbed by unnecessary conflict between courts equally bound to guard and protect rights secured by the Constitution.

This court holds that where a person is in custody, under process from a state court of original jurisdiction, for an alleged offence against the laws of such state, and it is claimed that he is restrained of his liberty in violation of the Constitution of the United States, the circuit court has a discretion, whether it will discharge him, upon habeas corpus, in advance of his trial in the court in which he is indicted; that discretion, however, to be subordinate to any special circumstances requiring immediate

The postponement of the right to judicial inquiry until after the remedy by ap-action. When the state court shall have peal to the Secretary has been exhausted is finally acted upon the case, the circuit court justified by analogy to the rule which re- has still a discretion whether, under all the strains this court from interfering with the circumstances then existing, the accused, if orderly administration of criminal law in convicted, shall be put to his writ of error the courts of a state until after a final de- from the highest court of the state, or termination by the highest court of that whether it will proceed, by writ of habeas state. But there is this essential differ- corpus, summarily to determine whether the ence: To the highest court of a state a petitioner is restrained of his liberty in viowrit of error runs from this court, and there|lation of the Constitution of the United is, therefore, propriety in waiting until the States." final decision of the courts of the states, the presumption being always that they will up24 S. C.-40.

But here there is no appeal or writ of error from the decision of the Secretary to

174

175

*176

this or to any other court, and the remedy | the case, together with such briefs, affiwhich must be pursued then as now is only davits, and statements as are to be consid that of habeas corpus. Indeed, in the opin- ered in connection therewith, shall be forion the court does not give to these peti-warded to the Commissioner General of Imtioners encouragement to believe that there migration by the officer in charge at the port can be any judicial examination, even after of arrival, accompanied by his views therethe decision by the Secretary against their on in writing; but on such appeal no eviclaim of American citizenship. If a judi- dence will be considered that has not been cial hearing at any time is not in terms de- made the subject of investigation and renied, it is, at least, like a famous case port by the said officer in charge." of old, passed to "a convenient season." Meantime the American citizen must abide in the house of detention.

"Rule 6. Immediately upon the arrival of Chinese persons at any port mentioned in Rule 4 it shall be the duty of the officer in charge of the administration of the Chinese exclusion laws to adopt suitable means to prevent communication with them by any persons other than officials under his control, to have said Chinese persons examined promptly, as by law provided, touching their right to admission, and to permit those prov-mitted. By Rule 7 the examination is to be ing such right to land.

•179

*178

port of the United States, as these petition- | not liable to such punishment? Can it be ers did into the port of Malone, placed as that the benefit of a doubt which attaches to they were in a house of detention, shut off from communication with friends and counsel, examined before an inspector with no one to advise or counsel, only such witnesses present as the inspector may designate, and, upon an adverse decision, compelled to give notice of appeal within two days, within three days the transcript forwarded to the Commissioner General, and nothing to be considered by him except the testimony obtained in this Star Chamber proceeding. This is called due process of law to protect the rights of an American citizen, and sufficient to prevent inquiry in the courts.

all other accused persons is taken away from one simply because he is a Chinaman? And can it be that when one produces a judicial finding of citizenship, such finding can be brushed one side unless the identity of the individual in whose behalf the finding was made is established beyond doubt! I cast no reflections upon the immigration officer in the present case. I am simply challenging a system and provisions which place within the arbitrary power of an individual the denial of the right of an American citizen to free entrance into this country, and put such denial outside the scope But it is said that the applicants did not of judicial inquiry. It may be true that a prove before the immigration officer that ministerial officer, in a secret and private inthey were citizens; that some simply alleged vestigation, may strive to ascertain the the fact, while others said nothing; that truth and to do justice, but unless we blind they were told that if they would give the our eyes to the history of the long struggle names of two witnesses their testimony in the mother country to secure protection would be taken and considered. But what to the liberty of the citizen, we must realize provision of law is there for compelling the that a public investigation before a judicial attendance of witnesses before such immi-tribunal, with the assistance of counsel and gration officer or for taking depositions, and the privilege of cross-examination, is the of what avail would be an ex parte inquiry best, if not the only, way to secure that reof such witnesses? Must an American citi-sult. zen, seeking to return to this, his native land, be compelled to bring with him two witnesses to prove the place of his birth, or else be denied his right to return, and all opportunity of establishing his citizenship in the courts of his country? No such rule is enforced against an American citizen of Anglo-Saxon descent, and if this be, as claimed, a government of laws, and not of men, I do not think it should be enforced against American citizens of Chinese descent.

In my judgment we are making a curious judicial history. In Yick Wo v. Hopkins, 118 U. S. 356, 369, 30 L. ed. 220, 226, 6 Sup. Ct. Rep. 1064, 1070, decided in 1886, we said:

"The 14th Amendment to the Constitution is not confined to the protection of citi zens. It says: 'Nor shall any state deprive any person of life, liberty, or property without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.' These provisions are universal in their application to all persons within the territorial jurisdiction, without regard to any differences of race, of color, or of nationality; and the equal protection of the laws is a pledge of the protection of equal laws."

Again, by Rule 21, the burden of proof is cast upon the applicant, no other evidence is to be accepted except that which the law prescribes, and in every doubtful case the benefit of the doubt is to be given to the government. And by Rule 22 a judicial finding of citizenship is not to be accepted In United States v. Wong Kim Ark, 169 as conclusive unless the party presenting it | U. S. 649, 42 L. ed. 890, 18 Sup. Ct. Rep. is "completely identified." I showed in my 456, decided in 1898, the petitioner, a Chidissenting opinion in Fong Yue Ting v. nese person born in the United States, reUnited States, 149 U. S. 698, 740, 37 L. ed. turning from China, was refused permission 905, 922, 13 Sup. Ct. Rep. 1016, that expul- to land, and was restrained of his liberty sion was punishment. That proposition was by the collector, the officer then charged with not denied by the majority of the court that duty. Without making any appeal from when applied to a citizen, but only as ap- the decision of such local officer, although plied to aliens (p. 709, L. ed. p. 912, Sup. the law as to appeal to the Secretary was Ct. Rep. p. 1020). If expulsion from the then the same as now, he sued out a writ of country is punishment for crime when ap- habeas corpus from the district court of the plied to a citizen, can it be that the rule United States, which court, after hearing, which requires the government to assume discharged him on the ground that he was the burden of proof, and which clothes the born within the United States, and thereaccused with the presumption of innocence fore a citizen thereof. On appeal to this can be changed by casting upon the individ- court that decision was affirmed. No one ual the burden of showing that he is one connected with the case doubted that the im

*180

*181

migration and exclusion laws had no appli- | giving him all opportunity to be heard upon cation to him if he were a citizen, or ques- the questions involving his right to be and tioned his right to appeal in the first in- remain in the United States. No such arstance to the courts for his discharge from bitrary power can exist where the principles the illegal restraint. involved in due process of law are recog nized."

In Chin Bak Kan v. United States, 186 U. S. 193, 46 L. ed. 1121, 22 Sup. Ct. Rep. 891, decided in 1902, it appeared that Chin Bak Kan was brought before a commissioner of the United States charged with wrongfully coming in and remaining within the United States. After a hearing he was adjudged guilty of the charge by the commissioner and ordered removed to China. An appeal was taken to the district court of the United States but the appeal was dismissed, and thereupon the case was brought here. The jurisdiction of the commissioner was challenged, and in disposing of that the court said (p. 200, L. ed. p. 1126, Sup. Ct. Rep. p. 894):

statute."

In the Japanese Immigrant Case, 189 U.

This was in the case of one confessedly an alien.

Now the court holds that parties claiming to be citizens can have that claim determined adversely by a mere ministerial officer, and be denied the right of immediate appeal to the courts for a judicial inquiry and determination thereof. I cannot believe that the courts of this Republic are so burdened with controversies about property that they cannot take time to determine the right of personal liberty by one claiming to be a citizen.

Further, even if it should be proved that these petitioners are not citizens of the "A United States commissioner is a quasi United States, but simply Chinese laborers judicial officer, and in these hearings he acts seeking entrance into this country, it may judicially. Moreover, this case was taken not be amiss to note the significance of the by appeal from the commissioner to the act of April 29, 1902 (32 Stat. at L. 176, judge of the district court, and his decision chap. 641),1 re-enacting and continuing the was affirmed, so that there was an adjudica- prior laws respecting the exclusion of the tion by a United States judge in the con-Chinese, "so far as the same are not inconstitutional sense as well as by the commis-sistent with treaty obligations," taken in sioner acting as a judge in the sense of the connection with this provision in article 4 of the treaty with China, proclaimed December 8, 1894 [28 Stat. at L. 1210], “that Chinese laborers or Chinese of any other class, either permanently or temporarily residing in the United States, shall have, for the protection of their persons and property, all rights that are given by the laws of the United States to citizens of the most favored nation, excepting the right to become naturalized citizens." I am not astonished at the report current in the papers that China has declined to continue this treaty for another term of ten years.

S. 86, 100, 47 L. ed. 721, 725, 23 Sup. Ct. Rep. 611, 614, decided in 1903, this court, while sustaining the action of the minis

terial officers, said:

"But this court has never held, nor must we now be understood as holding, that administrative officers, when executing the provisions of a statute involving the liberty of persons, may disregard the fundamental principles that inhere in 'due process of law' as understood at the time of the adoption of the Constitution. One of these principles is that no person shall be deprived of his liberty without opportunity, at some time, to be heard, before such officers, in respect of the matters upon which that liberty depends, not necessarily an opportunity upon a regular set occasion, and according to the forms of judicial procedure, but one that will secure the prompt, vigorous action contemplated by Congress, and at the same time be appropriate to the nature of the case upon which such officers are required to act. Therefore, it is not competent for the Secretary of the Treasury or any executive officer, at any time within the year limited by the statute, arbitrarily to cause an alien, who has entered the country, and has become subject in all respects to its jurisdiction, and a part of its population, although alleged to be illegally here, to be taken into custody and deported without

Finally, let me say that the time has been when many young men from China came to our educational institutions to pursue their studies; when her commerce sought our shores, and her people came to build our railroads, and when China looked upon this country as her best friend. If all this be reversed and the most populous nation on earth becomes the great antagonist of this republic, the careful student of history will recall the words of Scripture, "they have sown the wind, and they shall reap the whirlwind," and for cause of such antagonism need look no further than the treatment accorded during the last twenty years by this country to the people of that nation.

I am authorized to say that Mr. Justice Peckham concurs in this dissent.

1 U. S. Comp. St. Supp. 1903, p. 188

182