United States v. Tuck/Dissent Brewer
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.

The decision is based upon the act of August 18, 1894 (28 Stat. at L. 390, chap. 301, U.S.C.omp. Stat. 1901, p. 1303), which provides:

'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.'

But by its very terms that act applies only to an alien, and these parties assert that they are not aliens. If not aliens, certainly that act is inapplicable. So affirms Rule 2, prescribed by the Secretary of Commerce and Labor, concerning the immigration of Chinese persons, which reads: '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.' 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):

'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.C.omp. 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):

'The act of August 18, 1894 (28 Stat. at L. 390, chap. 301, U.S.C.omp. Stat. 1901, p. 1303), makes the decision of the appropriate immigration or customs officer, if adverse to the admission of an alien, final unless reversed on appeal to the Secretary of the Treasury. Even if appellant herein was ultimately entitled to a writ of habeas corpus, she was not in a position justly to obtain the writ until she had prosecuted an unavailing appeal to the Secretary of the Treasury, and thus pursued her remedy in the executive course to the uttermost.'

That case did not hold that the applicant was a citizen of the United States, but only that, being a subject of Porto Rico, an island ceded to the United States, and, as adjudged by a bare majority of this court in conflicting opinions, not within the full scope of constitutional protection, she was not an alien immigrant. Here the petitioners claim that they are citizens by birth, and the dccision is that, nevertheless, they 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.

But it is said that, inasmuch as Congress has provided for an appeal from the immigration officer to the Secretary of the Treasury, 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.

The postponement of the right to judicial inquiry until after the remedy by appeal 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 presumption being always that they will uphold the Constitution of the United States, and enforce any rights granted by it.

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:

'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 is not bound in every case to exercise such 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. . . . 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 action. When the state court shall have 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.'

But here there is no appeal or writ of error from the decision of the Secretary to this or to any other court, and the remedy which must be pursued then as now is only that of habeas corpus. Indeed, in the opinion the court does not give to these petitioners encouragement to believe that there can be any judicial examination, even after the decision by the Secretary against their claim of American citizenship. If a judicial hearing at any time is not in terms denied, it is, at least, like a famous case 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 Secreatary 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 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 proving 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 officials, and such witness or witnesses only as the exaimining 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.

'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 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.

'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.'

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 permitted. By Rule 7 the examination is to be 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.C.onstitution), 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 appeal, and such counsel, after filing notice 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 port of the United States, as these petitioners did into the port of Malone, placed as 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.

But it is said that the applicants did not prove before the immigration officer that they were citizens; that some simply alleged the fact, while others said nothing; that they were told that if they would give the names of two witnesses their testimony would be taken and considered. But what provision of law is there for compelling the attendance of witnesses before such immigration officer or for taking depositions, and of what avail would be an ex parte inquiry of such witnesses? Must an American citizen, 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 not liable to such punishment? Can it be that the benefit of a doubt which attaches to 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 can be brushed one side unless the identity can be brushed one side unless the indentity of the individual in whose behalf the finding was made is established beyond doubt?

In 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 of judicial inquiry. It may be true that a ministerial officer, in a secret and private investigation, may strive to ascertain the truth and to do justice, but unless we blind our eyes to the history of the long struggle in the mother country to secure protection to the liberty of the citizen, we must realize that a public investigation before a judicial tribunal, with the assistance of counsel and the privilege of cross-examination, is the best, if not the only, way to secure that result.

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 citizens. 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 immigration and exclusion laws had no application to him if he were a citizen, or questioned his right to appeal in the first instance to the courts for his discharge from the illegal restraint.

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):

'A United States commissioner is a quasi judicial officer, and in these hearings he acts judicially. Moreover, this case was taken by appeal from the commissioner to the judge of the district court, and his decision was affirmed, so that there was an adjudication by a United States judge in the constitutional sense as well as by the commissioner acting as a judge in the sense of the 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 ministerial 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 giving him all opportunity to be heard upon the questions involving his right to be and remain in the United States. No such arbitrary power can exist where the principles involved in due process of law are recognized.'

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 United States, but simply Chinese laborers seeking entrance into this country, it may not be amiss to note the significance of the act of April 29, 1902 (32 Stat. at L. 176, chap. 641),  re-enacting and continuing the prior laws respecting the exclusion of the Chinese, 'so far as the same are not inconsistent with treaty obligations,' taken in 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.

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. 

Notes