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194 U.S. 279
UNITED STATES ex rel. JOHN TURNER, Appt.,
WILLIAM WILLIAMS, United States Commissioner of Immigration for the Port of New York.
Argued April 6 and 7, 1904.
Decided May 16, 1904.
[194 U.S. 279, 280] John Turner filed in the United States circuit court for the southern district of New York, October 26, 1903, a petition alleging--
-and praying for a writ of habeas corpus to the commissioner of immigration of the port of New York, and also for a writ of certiorari to bring up the record of the board of inquiry which adjudged him to be an anarchist and in the United States in violation of the immigration laws. The commissioner made return under oath, and also certified the record of the board of inquiry.
The return stated--
The warrant issued by the Secretary was addressed to certain United States immigrant inspectors, and recited that from the proofs submitted the Secretary was satisfied that Turner, an alien anarchist, came into this country contrary to the prohibition of the act of Congress of March 3, 1903, and commanded them to take him into custody, and return him to the country from whence he came, at the expense of the United States. On appeal to the Secretary the record of proceedings before the board of inquiry was transmitted, and the Secretary held: 'The evidence shows that the appellant declined to give exact information as to the manner in which he secured admission to this country, although he swears that he arrived here about ten days ago. He admits that he is an anarchist and an advocate of anarchistic principles, which brings him within the class defined by 38 of the act approved March 3, 1903.2 In view of these facts, the appeal is dismissed, and you are directed to deport the said John Turner, in conformity with warrant now in your hands for execution.'
The hearing before the board of inquiry was had October 24, 1903, and it appeared from the minutes thereof that Turner testified that he was an Englishman; that he had been in the United States ten days, and that he did not come through New York, but declined to either affirm or deny that he arrived [194 U.S. 279, 283] via Canada; that he would not undertake to deny that he had, in the lecture delivered in New York, October 23, declared himself to be an anarchist, which, he said, was a statement that he would make; and that the testimony of the inspectors was about correct. That evidence gave extracts from the address referred to, including these: 'Just imagine what a universal tie-up would mean. What would it mean in New York city alone if this idea of solidarity were spread through the city? If no work was being done, if it were Sunday for a week or a fortnight, life in New York would be impossible, and the workers, gaining audacity, would refuse to recognize the authority of their employers, and eventually take to themselves the handling of the industries. . . . All over Europe they are preparing for a general strike, which will spread over the entire industrial world. Everywhere the employers are organizing, and to me, at any rate, as an anarchist, as one who believes that the people should emancipate themselves, I look forward to this struggle as an opportunity for the workers to assert the power that is really theirs.'
Certain papers were found on Turner, one of them being a list of his proposed series of lectures (which, when the warrant was in execution, he rolled up and threw away), the subjects including: 'The Legal Murder of 1887,' and 'The Essentials of Anarchism;' notices of meetings, one of a mass-meeting November 9, at which 'speeches will be delivered by John Turner in English, John Most, in German, and several other speakers. Don't miss this opportunity to hear the truth expressed about the great Chicago tragedy on the eleventh of November, 1887;' and another, stating: 'It may be interesting to all that Turner has recently refused to accept a candidacy to Parliament because of his anarchistic principles.'
A demurrer was interposed to the return, and, after argument, the circuit court dismissed the writ and remanded the petitioner. 126 Fed. 253. From this order an appeal was prayed and allowed to this court, and, having been docketed, petitioner was admitted to bail. [194 U.S. 279, 284] Sections 2 and 38 of the act of March 3, 1903, entitled 'An Act to Regulate the Immigration of Aliens into the United States' (32 Stat. at L. 1213, chap. 1012), are as follows:
By the act of February 14, 1903 (32 Stat. at L. 825, chap. 552),3 'To Establish the Department of Commerce and Labor,' the jurisdiction, supervision, and control possessed and exercised by the Department of the Treasury over the immigration of aliens into the United States were transferred to the Department of Commerce and Labor established by the act, to take effect and be in force the first day of July, 1903.
Messrs. Edgar L. Masters and Clarence S. Darrow for appellant.
[194 U.S. 279, 289] Assistant Attorney General McReynolds for the appellee.
Statement by Mr. Chief Justice Fuller:
This appeal was taken directly to this court on the ground that the case involved the construction or application of the Constitution of the UnitedStates, and that the constitutionality of a law of the United States was drawn in question; and although it may be, as argued by the government, that the principles which must control our decision have been practically settled, we think, the whole record considered, that we are not constrained to dismiss the appeal for that reason.
It is contended that the act of March 3, 1903, is unconstitutional because in contravention of the 1st, 5th, and 6th articles of amendment of the Constitution, and of 1 of article 3 of that instrument; and because no power 'is delegated by the Constitution to the general government over alien friends with reference to their admission into the United States or otherwise, or over the beliefs of citizens, denizens, sojourners, or aliens, or over the freedom of speech or of the press.'
Repeated decisions of this court have determined that Congress has the power to exclude aliens from the United States; to prescribe the terms and conditions of which they may come in; to establish regulations for sending out of the country such aliens as have entered in violation of law, and to commit the enforcement of such conditions and regulations to executive [194 U.S. 279, 290] officers; that the deportation of an alien who is found to be here in violation of law is not a deprivation of liberty without due process of law, and that the provisions of the Constitution securing the right of trial by jury have no application. Chae Chan Ping v. United States, 130 U.S. 581 , 32 L. ed. 1068, 9 Sup. Ct. Rep. 623; Nishimura Ekiu v. United States, 142 U.S. 651 , 35 L. ed. 1146, 12 Sup. Ct. Rep. 336; Fong Yue Ting v. United States, 149 U.S. 698 , 37 L. ed. 905, 13 Sup. Ct. Rep. 1016; Lem Moon Sing v. United States, 158 U.S. 538 , 39 L. ed. 1082, 15 Sup. Ct. Rep. 967; Wong Wing v. United States, 163 U.S. 228 , 41 L. ed 140, 16 Sup. Ct. Rep. 977; Fok Young Yo v. United States, 185 U.S. 296 , 46 L. ed. 917, 22 Sup. Ct. Rep. 686; Japanese Immigrant Case, 189 U.S. 86 , 47 L. ed. 721, 23 Sup. Ct. Rep. 611; Chin Bak Kan v. United States, 189 U.S. 193 , 46 L. ed. 1121, 22 Sup. Ct. Rep. 891; United States v. Sing Tuck, 194 U.S. 161 , ante, 621, 24 Sup. Ct. Rep.621.
In the case last cited the distinction on whichGonzales v. Williams, 192 U.S. 1 , ante, p. 177, 24 Sup. Ct. Rep. 177, turned was pointed out. The question whether a citizen of Porto Rico, under the treaty of cession [ 30 Stat. at L. 1754] and the act of April 12, 1900 [31 Stat. at L. 77, chap. 191], came within the immigration law of March 3, 1891 [26 Stat. at L. 1084, chap. 551, U. S. Comp. Stat. 1901, p. 1294], was purely a question of law, which, beingdecided in the negative, all questions of fact became immaterial.
In the present case alienage was conceded, and was not in dispute, and it was the question of fact thereupon arising that was passed on by theboard, and by the Secretary on appeal.
Whether rested on theaccepted principle of international law, that every sovereign nation has the power, as inherent in sovereignty and essential to self-preservation, to forbid the entrance of foreigners within its dominions, or to admit them only in such cases and upon such conditions as it may see fit to prescribe; or on the power to regulate commerce with foreign nations, which includes the entrance of ships, the importation of goods, and the bringing of persons into the ports of the United States, the act before us is not open to constitutional objection. And while we held in Wong Wing v. United States, 163 U.S. 228 , 41 L. ed. 140, 16 Sup. Ct. Rep. 977, a certain provision of an immigration law invalid on thatground, this act does not come within the ruling.
In that case Mr.Justice Shiras, speaking for the court, said:
Detention or temporary confinement as part of themeans necessary to give effect to the exclusion or expulsion was held valid, but so much of the act of 1892 [27 Stat. at L. 25, chap. 60, U. S. Comp. Stat. 1901, p. 1319] as provided for imprisonment at hard labor without a judicial trial was held to be unconstitutional. The cases of Chae Chan Ping, Fong Yue Ting and Lem Moon Sing werecarefully considered and applied.
We do not feel called upon toreconsider these decisions, and they dispose of the specific contentions as to the application of the 5th and 6th Amendments, and 1 of article 3, and the denial of the delegation to the general government of [194 U.S. 279, 292] the power to enact this law. But it is said that the act violates the 1st Amendment, which prohibits the passage of any law 'respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assembly, and to petition thegovernment for a redress of grievances.'
We are at a loss tounderstand in what way the act is obnoxious to this objection. It has no reference to an establishment of religion, nor does it prohibit the free exercise thereof; nor abridge the freedom of speech or of the press; nor the right of the people to assemble and petition the government for a redress of grievances. It is, of course, true, that if an alien is not permitted to enter this country, or, having entered contrary to law, is expelled, he is in fact cut off from worshipping or speaking or publishing or petitioning in the country; but that is merely because of his exclusion therefrom. He does not become one of the people to whom these things are secured by our Constitution by an attempt to enter, forbidden by law. To appeal to the Constitution is to concede that this is a land governed by that supreme law, and as under it the power to exclude has been determined to exist, those who are excluded cannot assert the rights in general obtaining in a land towhich they do not belong as citizens or otherwise.
Appellant'scontention really comes to this: that the act is unconstitutional so far as it provides for the exclusion of an alien because he is ananarchist.
The argument seems to be that, conceding that Congresshas the power to shut out any alien, the power, nevertheless, does not extend to some aliens, and that if the act includes all alien anarchists, it is unconstitutional, because some anarchists are merely political philosophers, whose teachings are beneficial rather thanotherwise.
Counsel give these definitions from the Centurydictionary:
And Huxley is quoted assaying: 'Anarchy, as a term of political philosophy, must be taken only in its proper sense, which has nothing to do with disorder or with crime, but denotes a state of society in which the rule of each individual by himself is the only government the legitimacy of which isrecognized.'
The language of the act is 'anarchists, or persons who believe in or advocate the overthrow by force or violence of the government of the United States or of all government or of all forms of law, or the assassination of public officials.' If this should be construed as defining the word 'anarchists' by the words which follow, or as used in the popular sense above given, it would seem that when an alien arrives in this country, who avows himself to be an anarchist, without more, he accepts the definition. And we suppose counsel does not deny that this government has the power to exclude an alien who believes in or advocates the overthrow of the government or of all governments by force or the assassination of officials. To put thatquestion is to answer it.
And if the judgment of the board and the Secretary was that Turner came within the act as thus construed, we can- [194 U.S. 279, 294] not hold, as matter of law, that there was no evidence on which that conclusion could be rested. Even if Turner, though he did not so state to the board, only regarded the absence of government as a political ideal, yet when he sought to attain it by advocating, not simply for the benefit of workingmen, who are justly entitled to repel the charge of desiring the destruction of law and order, but 'at any rate, as an anarchist,' the universal strike to which he referred, and by discourses on what he called 'The Legal Murder of 1887' (Spies v. People, 122 Ill. 1, 3 Am. St. Rep. 320, 12 N. E. 865, 17 N. E. 898), and by addressing mass meetings on that subject in association with Most (Queen v. Most, L. R. 7 Q. B. Div. 244; People v. Most, 171 N. Y. 423, 58 L. R. A. 509, 64 N. E. 175), we cannot say that the inference was unjustifiable either that he contemplated the ultimate realization of his ideal by the use of force, or that his speeches wereincitements to that end.
If the word 'anarchists' should beinterpreted as including aliens whose anarchistic views are professed as those of political philosophers, innocent of evil intent, it would follow that Congress was of opinion that the tendency of the general exploitation of such views is so dangerous to the public weal that aliens who hold and advocate them would be undesirable additions to our population, whether permanently or temporarily, whether many or few; and, in the light of previous decisions, the act, even in this aspect, would not be unconstitutional, as applicable to any alien who is opposedto all organized government.
We are not to be understood asdepreciating the vital importance of freedom of speech and of the press, or as suggesting limitations on the spirit of liberty, in itself unconquerable, but this case does not involve those considerations. The flaming brand which guards the realm where no human government is needed still bars the entrance; and as lone as human governments endure they cannot be denied the power of self-preservation, as that question ispresented here.
Reference was made by counsel to the alien law ofJune 25, 1798 (1 Stat. at L. 570, chap. 58), but we do not think that the con- [194 U.S. 279, 295] troversy over that law (and the sedition law) and the opinions expressed at the time against its constitutionality have any bearing upon this case, which involves an act couched in entirely different terms, and embracing an entirely different purpose. As Mr. Justice Field remarked in the Chinese Exclusion Case, 130 U.S. 610 , 32 L. ed. 1077, 9 Sup. Ct. Rep. 632: 'The act was passed during a period of great political excitement, and it was attacked and defended with great zeal and ability. It is enough, however, to say that it is entirely different from the act before us, and the validity of its provisions was never brought to the test of judicial decision in the courts of the United States.' Order affirmed.
Separate opinion by Brewer, j.:
In viewof the range of discussion in the argument of this case at the bar, I feel justified in adding a few words to what has been said by the ChiefJustice.
First. I fully indorse and accentuate the conclusions ofthe court, as disclosed by the opinion, that, notwithstanding the legislation of Congress, the courts may and must, when properly called upon by petition in habeas corpus examine and determine the right of any individual restrained of his personal liberty to be discharged from such restraint. I do not believe it within the power of Congress to give to ministerial officers of final adjudication of the right to liberty, or to oust the courts from the duty of inquiry respecting both law and facts. 'The privilege of the writ of habeas corpus shall not be suspended, unless when, in cases of rebellion or invasion, the public safety may require it.' Const. art. 1, 9, clause 2.
Second. While undoubtedly the United States as a nation has all the powers which inhere in any nation, Congress is not authorized in all things to act for the nation, and too little effect has been given to the 10th article of the amendments to the Constitution, that 'the powers not delegated to the United States by the Constitution, nor prohibited by it to the [194 U.S. 279, 296] states, are reserved to the states respectively, or to the people.' The powers the people have given to the general government are named in the Constitution, and all not there named, either expressly or by implication, are reserved to the people, and can be exercised only by them, or upon further grant from them.
Third. No testimony was offered on the hearing before the circuit court other than that taken before the immigration board of inquiry, and none before such board save that preserved in its report. Hence, the facts must be determined by that evidence. It is not an unreasonable deduction therefrom that petitioner is an anarchist in the commonly accepted sense of the term,-one who urges and seeks the overthrow by force of all government. If that be not the fact, he should have introduced testimony to establish the contrary. It is unnecessary, therefore, to consider what rights he would have if he were only what is called, by way of differentiation, a philosophical anarchist,-one who simply entertains and expresses the opinion that all government is a mistake, and that society would be better off without any.
[ Footnote 2 ] U. S. Comp. St. Supp. 1903, p. 186.
[ Footnote 3 ] U. S. Comp. St. Supp. 1903, p. 41.
[ Footnote 1 ] U. S. Comp. St. Supp. 1903, pp. 172, 180.