Lapas attēli
PDF
ePub

which has jurisdiction, and acts, not arbitrarily, but in conformity, with a general law, upon evidence, and after inquiry made with notice to the parties affected and opportunity to be heard, then all the requirements of due process, so far as it relates to procedure in court and methods of trial and character and effect of evidence, are complied with. * [Here follow quotations from vari

*

ous cases to this effect.]

In Missouri v. Lewis (Bowman v. Lewis) 101 U. S. 22, 25 L. Ed. 989, Mr. Justice Bradley, speaking for the whole court, said in effect, that the fourteenth amendment would not prevent a state from adopting or continuing the civil law instead of the common law. This dictum has been approved and made an essential part of the reasoning of the decision in Holden v. Hardy, 169 U. S. 387, 389, 18 Sup. Ct. 383, 42 L. Ed. 789, 790, and Maxwell v. Dow, 176 U. S. 598, 20 Sup. Ct. 448, 494, 44 L. Ed. 597. The statement excludes the possibility that the privilege is essential to due process, for it hardly need be said that the interrogation of the accused at his trial is the practice in the civil law.

Even if the historical meaning of due process of law and the decisions of this court did not exclude the privilege from it, it would be going far to rate it as an immutable principle of justice which is the inalienable possession of every citizen of a free government. Salutary as the principle may seem to the great majority, it cannot be ranked with the right to hearing before condemnation, the immunity from arbitrary power not acting by general laws, and the inviolability of private property. The wisdom of the exemption has never been universally assented to since the days of Bentham, many doubt it to-day, and it is best defended not as an unchangeable principle of universal justice, but as a law proved by experience to be expedient. See Wigmore, Ev. § 2251. It has no place in the jurisprudence of civilized and free countries outside the domain of the common law, and it is nowhere observed among our own people in the search for truth outside the administration of the law. It should, must, and will be rigidly observed where it is secured by specific constitutional safeguards, but there is nothing in it which gives it a sanctity above and before Constitutions themselves.

Judgment affirmed.

*

[HARLAN, J., gave a dissenting opinion.]

UNITED STATES v. JU TOY.

(Supreme Court of United States, 1905. 198 U. S. 253, 25 Sup. Ct. 644, 49 L Ed. 1040.)

Mr. Justice HOLMES. This case comes 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 nativeborn citizen of the United States, returning after a temporary 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: * * *

"Third. In a habeas corpus proceeding in a district court of the United States, instituted * * * [upon the grounds of this case], 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 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, 167, 920, 24 Sup. Ct. 621, 48 L. Ed. 917, that the act of August 18, 1894 (28 Stat. 372, 390, c. 301, § 1 [U. S. Comp. St. 1901, p. 1303]), 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 Japanese Immigrant Case (Yamataya v. Fisher) 189 U. S. 86, 97, 724, 23 Sup. Ct. 611, 613, 47 L. Ed. 721, 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, United States ex rel. Turner v. Williams, 194 U. S. 279, 290, 291, 24 Sup. Ct. 719, 48 L. Ed. 979, 983, 984; Chin Bak Kan v. United States, 186 U. S. 193, 200, 22 Sup. Ct. 891, 46 L. Ed. 1121, 1125. In Fok Young Yo v. United States, 185 U. S. 296, 304, 305, 22 Sup. Ct. 686, 46 L. Ed. 917, 921, it was held that the decision of the collector of customs on the right of transit 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, 15 Sup. Ct. 967, 39 L. Ed. 1082, 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, 167, 24 Sup. Ct. 621, 48 L. Ed. 917, 920; Lem Moon Sing v. United States, 158 U. S. 538, 546, 547, 39 L. Ed. 1082, 15 Sup. Ct. Rep. 967. It also is established by the former case and others which it cites that the relevant portion of the act of August. 18, 1894 (28 Stat. 372, 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 * [citing U. S. v. Reese, 92 U. S. 214, and other cases]. 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 (Ross v. McIntyre) 140 U. S. 453, 464, 11 Sup. Ct. 897, 35 L. Ed. 581, 586. 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 intrusted 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, 660, 12 Sup. Ct. 336, 35 L. Ed. 1146, 1149, and in Fong Yue Ting v. United States, 149 U. S. 698, 713, 13 Sup. Ct. 1016, 37 L. Ed. 905, 913, 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 Den ex dem. Murray v. Hoboken Land & Improv. Co., 18 How. 272, 280, 15 L. Ed. 372, 376, 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, 546, 547, 15 Sup. Ct. 967, 39 L. Ed. 1082, 1085; Japanese Immigrant Case (Yamataya v. Fisher) 189 U. S. 86, 100, 23 Sup. Ct. 611, 47 L. Ed. 721, 725; Public Clearing House v. Coyne, 194 U. S. 497, 508, 509, 24 Sup. Ct. 789, 48 L. Ed. 1092, 1098.

We are of opinion that

answered, "Yes."

So certified.

the third question should be

[BREWER, J., gave a dissenting opinion, in which PECKHAM, J., concurred. DAY, J., also dissented.]

DENT v. WEST VIRGINIA.

(Supreme Court of United States, 1889. 129 U. S. 114, 9 Sup. Ct. 231, 32 L

Ed. 623.)

See ante, p. 231, for a report of this case.

POLITICAL AND PUBLIC RIGHTS1

UNITED STATES v. WONG KIM ARK.

(Supreme Court of United States, 1898. 169 U. S. 649, 18 Sup. Ct. 456, 42 L. Ed. 890.)

[Appeal from the United States District Court for the Northern District of California. The collector of the port of San Francisco denied admission to the country to Wong Kim Ark, a Chinese person who was admitted to have been born in California and to be then returning from a temporary visit to China. He was ordered to be discharged upon a writ of habeas corpus, and the United States. appealed.]

Mr. Justice GRAY. The question presented by the record is whether a child born in the United States, of parents of Chinese descent, who at the time of his birth are subjects of the emperor of China, but have a permanent domicile and residence in the United States, and are there carrying on business, and are not employed in any diplomatic or official capacity under the emperor of China, becomes at the time of his birth a citizen of the United States, by virtue of the first clause of the fourteenth amendment of the Constitution: "All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside."

I. In construing any act of legislation, whether a statute enacted by the legislature, or a Constitution established by the people as the supreme law of the land, regard is to be had, not only to all parts of the act itself, and of any former act of the same lawmaking power, of which the act in question is an amendment, but also to the condition. and to the history of the law as previously existing, and in the light of which the new act must be read and interpreted.

The Constitution of the United States, as originally adopted, uses the words "citizen of the United States" and "natural-born citizen of the United States." By the original Constitution, every representative in Congress is required to have been "seven years a citizen of the United States," and every senator to have been "nine years a citizen of the United States"; and "no person except a natural-born citizen, or a citizen of the United States at the time of the adoption of this Constitution, shall be eligible to the office of president." The fourteenth article of amendment, besides declaring that "all persons born or naturalized in the United States, and subject to the jurisdiction thereof,

1 For discussion of principles, see Black, Const. Law (3d Ed.) §§ 234, 244. HALL CASES CONST.L.-27

« iepriekšējāTurpināt »