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Argument for Defendant in Error.

defeats the intention of the legislature, which clearly was to exclude various undesirable classes of persons, among others women of loose moral character.

Even should the rule ejusdem generis be applied herein, the finding of the court below is not warranted by the language of the statute. The words "for any other immoral purpose" must be given some meaning, and that given to them by the trial court limits them to an extent evidently not contemplated by Congress. The courts have repeatedly refused, even when applying the rule of ejusdem generis, to apply it in a narrow sense. Misch v. Russell, 136 Illinois, 22; Queen v. Edmundson, 2 Ellis & Ellis, 77; County of Union v. Ussery, 147 Illinois, 204. It can hardly be denied that the act of the defendant in error in importing the woman mentioned in the indictment is one which is generally condemned by the moral sense of all enlightened communities and is assuredly contrary to purity. But it is more than that. Both the common and statute law have uniformly recognized illicit sexual relations as immoral, and courts have repeatedly refused to enforce contracts the consideration for which was future illicit cohabitation. Such purpose is one which the law seeks to defeat and holds as against sound public policy and deserving of condemnation by right-thinking men.

The conduct of the defendant in error was "immoral" as matter of strict law and this position is amply sustained by state and Federal authorities. Ralston v. Boady, 20 Georgia, 449, and cases cited; Potter v. Gracie, 58 Alabama, 303; Walker v. Perkins, 3 Burrows, 1568; S. C., 1 W. Black, 517; Nye v. Moseley, 6 Barnewall & Cresswell, 133. See also. Walker v. Gregory, 36 Alabama, 180; Winebrinner v. Weisiger, 19 Kentucky, 33; Reed v. Brewer, 36 S. W. Rep. 99; Mackbee v. Griffith, 2 Cranch C. C. 336.

Mr. Edward A. Alexander for defendant in error:

Counsel for defendant conceded in the court below, and concedes here, that concubinage is highly immoral, and that

Argument for Defendant in Error.

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it has been recognized as such by various States, which have passed laws against it. However, whether it be immoral or not is not the question. The only question involved on this point is whether or not Congress intended to legislate against those isolated cases where certain individuals come into this country with their mistresses.

The statute in question is a criminal statute and must be strictly construed.

The term "prostitute" necessarily implies the idea of a female who hires the use of her body for money, whereas the term "mistress" implies the case of one who cohabits with a male without being married to him.

There is a marked degree of difference between a prostitute and a mistress. If Congress had intended to cover the case of mistresses, who are not prostitutes, and who are in no way connected with the importation of prostitutes, or with the 'white slave trade," Congress could and would readily have said so by the use of apt language, as it cannot be presumed that Congress, which is one of the most intelligent bodies of government in the world, does not know how to use the English language to adequately designate its intentions.

The act of Congress under which this appeal was prosecuted by the United States is of doubtful validity.

The act gives the Government of the United States the right to appeal from a judgment or decree sustaining a demurrer to an indictment where the constitutionality or construction of a statute is involved. The act does not give to the defendant the right to appeal from a judgment or decree overruling his demurrer.

Furthermore, the act gives the Government the right to appeal in a criminal case where the construction of the statute is involved, and not in a criminal case where the defendant is indicted for violating a statute, but in which the construction of the statute does not come into question.

Furthermore, had the defendant in this case pleaded not guilty and gone to trial, had a jury been sworn, and a motion

made for the direction of a verdict of acquittal, and granted, it is believed, under the jeopardy clause of the Constitution, the defendant could not again be tried, and no appeal would lie, but because he demurred an appeal does lie.

The difference between the state legislatures and Congress is that the state legislatures possess all of the powers of the people of the State, except those which are expressly prohibited, whereas Congress only possesses those powers expressly granted or necessarily implied to carry out the objects for which Congress was created or for which the powers conferred were given.

It is conceded that Congress has the power to increase or diminish the appellate power of the Supreme Court, but it is doubted whether the people of the United States have given to Congress the power to pass partial legislation, which affects differently persons in the same class covered by the legislation:

Section 2, Article IV, of the Constitution provides that "the citizens of each State shall be entitled to all the privileges and immunities of citizens in the several States."

An act providing for appeals in certain specific cases, and also giving the Government the right to appeal and not giving the same right to the defendant, seems not only to be partial legislation, but seems to be also in conflict with Art. IV, § 2, of the Constitution, providing that "the citizens of each State shall be entitled to all privileges and immunities of the citizens in the several States."

MR. JUSTICE HARLAN delivered the opinion of the court. This is a criminal prosecution under an act of Congress regulating the immigration of aliens into the United States.

By the act of March 3, 1875, c. 141, relating to immigration, it was made a felony, punishable by imprisonment not exceeding five years and by fine not exceeding five thousand dollars, for any one knowingly and willfully to import or to cause the importation of women into the United States for the purposes of "prostitution." 18 Stat. 477.

By the act of March 3, 1903, § 3, c. 1012, it was provided: "That the importation into the United States of any woman or girl for the purposes of prostitution is hereby forbidden; and whoever shall import or attempt to import any woman or girl into the United States for the purposes of prostitution, or shall hold or attempt to hold, any woman or girl for such purposes in pursuance of such illegal importation shall be deemed guilty of a felony, and, on conviction thereof, shall be imprisoned not less than one nor more than five years and pay a fine not exceeding five thousand dollars." 32 Stat. 1213, 1214, Pt. 1.

A more comprehensive statûte regulating the immigration of aliens into the United States was passed on February 20, 1907, c. 1134. By that act the prior act of 1903 (except one section) was repealed. The third section of this last statute was in these words: "That the importation into the United States of any alien woman or girl for the purpose of prostitution, or for any other immoral purpose, is hereby forbidden; and whoever shall, directly or indirectly, import, or attempt to import, into the United States, any alien woman or girl for the purpose of prostitution, or for any other immoral purpose, or whoever shall hold or attempt to hold any alien woman or girl for any such purpose in pursuance of such illegal importation, or whoever shall keep, maintain, control, support, or harbor in any house or other place, for the purpose of prostitution, or for any other immoral purpose, any alien woman or girl, within three years after she shall have entered the United States, shall, in every such case, be deemed guilty of a felony, and on conviction thereof be imprisoned not more than five years and pay a fine of not more than five thousand dollars; and any alien woman or girl who shall be found an inmate of a house of prostitution or practicing prostitution, at any time within three years after she shall have entered the United States, shall be deemed to be unlawfully within the United States and shall be deported as provided by sections twenty and twenty-one of this Act." 34 Stat. 898, Pt. 1.

The defendant in error Bitty was charged by indictment in

the Circuit Court of the United States for the Southern District of New York with the offense of having unlawfully, willfully, and feloniously imported into the United States from England a certain named alien woman for "an immoral purpose," namely, "that she should live with him as his concubine."

The Circuit Court having sustained a demurrer to the indictment and dismissed the case the United States prosecuted this writ of error under the authority of the act of March 2, 1907, 34 Stat. 1246, c. 2564. That statute authorizes a writ of error, on behalf of the United States, from the District or Circuit Courts directly to this court in all criminal cases in which an indictment is quashed or set aside or in which a demurrer to the indictment or any count thereof is sustained, "where such decision or judgment is based upon the invalidity or construction of the statute upon which the indictment is founded."

The demurrer to the indictment was sustained and the indictment dismissed upon the ground that the statute, properly construed, did not make it an offense for one to bring and import an alien woman into the United States for the purpose of having her live with him as his concubine. The case is, therefore, one in which the United States was entitled, under the above act of 1907, to prosecute a writ of error from this court unless, as the accused suggests, the act is unconstitutional in that it authorizes the United States in the cases specified to bring the case directly to this court, but does not allow the accused to bring it here when a demurrer to the indictment or to some count thereof is overruled. There is no merit in this suggestion. Except in cases affecting ambassadors and other public ministers and consuls and those in which a State shall be a party-in which cases this court may exercise original jurisdiction-we can exercise appellate jurisdiction, both as to law and fact, with such exceptions and under such regulations as Congress shall make in the other cases to which by the Constitution the judicial power of the United States extends. Const. Art. III, § 2. What such exceptions and regula