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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, | 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 of his trial if he is restrained of his liberty in violation of the national Constitution, it

But it is said that, inasmuch as Congress has provided for an appeal from the immigration officer to the Secretary of the Treas-is not bound in every case to exercise such ury, or, rather, since the recent act transferring 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.

a power immediately upon application being 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 judicial 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.

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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 The postponement of the right to judi- special circumstances requiring immediate cial inquiry until after the remedy by ap-action. When the state court shall have peal to the Secretary has been exhausted is justified by analogy to the rule which restrains this court from interfering with the orderly administration of criminal law in the courts of a state until after a final determination by the highest court of that state. But there is this essential difference: To the highest court of a state a writ of error runs from this court, and there is, therefore, propriety in waiting until the final decision of the courts of the states, the But here there is no appeal or writ of erpresumption being always that they will up-ror from the decision of the Secretary to

24 S. C.-40.

finally acted upon the case, the circuit court has still a discretion whether, under all the circumstances then existing, the accused, if convicted, shall be put to his writ of error from the highest court of the state, or whether it will proceed, by writ of habeas corpus, summarily to determine whether the petitioner is restrained of his liberty in violation of the Constitution of the United States."

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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.

Further, there are special reasons why this prompt judicial inquiry by the writ of habeas corpus should be sustained. On July 27, 1903, the Secretary of Commerce and Labor, as authorized by statute, promulgated certain regulations concerning the admission of Chinese persons. Rule 4 named a dozen ports at which alone such persons should be permitted to enter, Malone, N. Y., where these petitioners are detained, being one of the number. Rules 6, 7, 8, 9, 21, and 22 are as follows:

"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 appro priate 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.

"Rule 22. No authenticated copy of a judicial finding that a Chinese person was born in the United States shall be accepted as conclusive in favor of the person presenting it, unless he be completely identified as the person to whom such authenticated copy purports to relate."

"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.

"Rule 7. The examination prescribed in Rule 6 should be separate and apart from the public, in the presence of government of ficials, 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 to make copies of, the evidence upon which the excluding decision is based.

By Rule 6 it is the duty of the inspector to prevent any communication between the immigrant and any person other than his own officials. In other words, no communication with counsel or with friends is per

private, in the presence only of government officials and such witnesses as the examining officer shall designate. The most notorious outlaw in the land, when charged by the United States with crime, is, by constitutional enactment (art. 6, Amendments U. S. Constitution), given compulsory process for obtaining witnesses in his favor and the assistance of counsel for his defense; but the Chinaman-although by birth a citizen of the United States-is thus denied counsel and the right of obtaining witnesses. After he has been adjudged inadmissible, then, and then for the first time, is he permitted to have counsel and advised of his right of

"Rule 8. Every Chinese person refused admission under the provisions of the exclu-appeal, and such counsel, after filing notice sion 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

of appeal, is permitted to examine, but not make copies of, the testimony upon which the excluding order is based. By Rule 8, if he desires to appeal, he must give written notice thereof within two days after the decision. By Rule 9, within three days after the filing of notice a complete record of the case is transmitted to the Commissioner General of Immigration, and on such appeal no evidence will be considered that has not been made the subject of investigation and report by the inspector. Can anything be more harsh and arbitrary! Coming into a

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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 all other accused persons is taken away from communication with friends and coun- from one simply because he is a Chinaman? sel, examined before an inspector with no And can it be that when one produces a juone to advise or counsel, only such witnesses dicial finding of citizenship, such finding present as the inspector may designate, and, can be brushed one side unless the identity upon an advei se decision, compelled to give of the individual in whose behalf the findnotice of appeal within two days, within ing was made is established beyond doubt! three days the transcript forwarded to the I cast no reflections upon the immigration Commissioner General, and nothing to be officer in the present case. I am simply considered by him except the testimony ob- challenging a system and provisions which tained in this Star Chamber proceeding. place within the arbitrary power of an inThis is called due process of law to protect|dividual the denial of the right of an Amerithe rights of an American citizen, and suf-can citizen to free entrance into this coun. ficient to prevent inquiry in the courts.

try, 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.

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 as conclusive unless the party presenting it is "completely identified." I showed in my dissenting opinion in Fong Yue Ting v. United States, 149 U. S. 698, 740, 37 L. ed. 905, 922, 13 Sup. Ct. Rep. 1016, that expulsion was punishment. That proposition was not denied by the majority of the court when applied to a citizen, but only as applied to aliens (p. 709, L. ed. p. 912, Sup. Ct. Rep. p. 1020). If expulsion from the country is punishment for crime when applied to a citizen, can it be that the rule which requires the government to assume the burden of proof, and which clothes the accused with the presumption of innocence can be changed by casting upon the individual the burden of showing that he is one

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."

In United States v. Wong Kim Ark, 169 U. S. 649, 42 L. ed. 890, 18 Sup. Ct. Rep. 456, decided in 1898, the petitioner, a Chinese person born in the United States, returning from China, was refused permission to land, and was restrained of his liberty by the collector, the officer then charged with that duty. Without making any appeal from the decision of such local officer, although the law as to appeal to the Secretary was then the same as now, he sued out a writ of habeas corpus from the district court of the United States, which court, after hearing, discharged him on the ground that he was born within the United States, and therefore a citizen thereof. On appeal to this court that decision was affirmed. No one connected with the case doubted that the im

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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):

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

statute."

In the Japanese Immigrant Case, 189 U. 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

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.

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

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(194 U. S. 194)

Re UNITED STATES, Petitioner. Appeal from commissioner's decision in Chinese exclusion cases-appeal to trict court intended by provision for appeal to district judge.

issued and executed, whereupon the commissioner found Coe guilty, and ordered him to be deported. Coe appealed "to the disdistrict court of the United States in and for the northern district of Ohio, and the judge of said court," and the commissioner transmitted a copy of the proceedings before him and the accompanying papers "into the district court of the United States," as his certificate stated. The transcript was filed by the clerk of the district court, and was marked as filed among the papers pertain ing to the case. Subsequently a hearing was had and § 13 of the act of Congress of September 13, 1888,1 was held to be unconstitutional, and Coe was discharged, to which exception was taken. Motion for new trial was made and overruled, and a bill of exceptions was duly settled and signed by the district judge. The United States applied to the clerk to file the bill of exceptions

The appeal to "the judge of the district court of the district," authorized by the act of September 13, 1888 (25 Stat. at L. 476, chap. 1015, U. S. Comp. Stat. 1901, p. 1312), 13, where a Chinese person has been convicted before a United States commissioner of being unlawfully in the United States, is, in effect, an appeal to the district court, and not to the district judge as an individual; and the commissioner's transcript and other papers pertaining to the cause may therefore be filed in that court, and the final order of the Judge be entered as the final order of the

.court.

[No. 16, Original.]

Submitted April 18, 1904. Decided May 2, and various papers as part of the record of the district court, and to prepare a certified transcript thereof; but the clerk de

1904.

PETITION for a Writ of Mandamus to clined to do this under instruction of the

compel the judge of the District Court judge, and furthermore stated that so many of the United States for the Northern Dis- of the papers as were marked filed "had trict of Ohio to direct the entry on the rec-been so marked by mistake." The United ords of that court of final judgment in cases appealed from convictions of Chinese persons before a United States commissioner of being unlawfully within the United States, and to compel the clerk to enter the same, and to compel such judge and clerk to file all the papers relating to the causes, and to treat them as properly appealed to the District Court, and as having been before that court for determination. cd.

States thereupon requested the judge, in writing, to order the clerk to file in the district court all the papers in the proceedings, and to make the necessary entries in regard thereto, and to prepare a certified transcript thereof, in order that a complete record of the same might be preserved, to be used on an appeal taken to this court. The request was refused on the ground that the Grant-proceedings on appeal from the commissioner had been had before the judge as judge, and not before the district court.

The facts are stated in the opinion. Solicitor General Hoyt and Assistant Attorney General McReynolds for petition

.er.

Leave having been granted to file the petition, and a rule having been entered thereon, return thereto has been duly made. The return of the judge states that in the

Mr. Chief Justice Fuller delivered the proceedings against Coe, which were deopinion of the court:

This is a petition for a writ of mandamus, commanding the judge of the district court of the United States for the northern dis-trict of Ohio to direct the entry on the records of that court of final judgment in the cases of United States v. Jock Coe, Bong Meng, and Woo Joe, and that the clerk enter the same; and that the cases be treated as properly appealed from the United States commissioner before whom they had been heard in the first instance, and as having been before the district court for determination. The complaint against Coe was made before a United States commissioner for the northern district of Ohio, charging that Coe, a Chinese person, was within the United States at Cleveland, Ohio, | contrary to law, and a warrant was duly

scribed in the bill of exceptions, a copy of
which was attached to the petition for man-
damus as an exhibit, he had denied as
judge the order applied for, although he had
allowed an appeal of the cause to the Su-
preme Court of the United States; that he
had adopted this course because he was of
opinion that § 13 gave jurisdiction on ap-
peal to respondent as judge, but did not give
jurisdiction to the district court to hear
such appeal; and that said appeal was heard
by respondent as judge, and not in the dis-
trict court; that the clerk should not be or-
dered to make the proceedings matter of
record in the district court, because there
was no provision of law requiring the clerk
to record proceedings other than those oc-
curring in the court.

It seems that the judge allowed a writ of
U. 8. Comp. St. 1901, p. 1312.

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