effect of 14th | deny aliens the right to own land within its borders.

property which are secured to native- | found in Amendment 14,-directed only born citizens. The moment any human at the states, and not, as is the due being from a country at peace with us process clause of Amendment 5, in the comes within the jurisdiction of the national Bill of Rights. See Re Sing United States, with their consent, and Lee, 54 Fed. 334, holding that the equal such consent will always be implied protection of the laws clause is directed when not expressly withheld, and, in the only at the state, hence has no applicacase of the Chinese laborers before us, tion to alien deportation proceedings unwas in terms given by the treaty re- der an act of Congress. That an alien ferred to, he becomes subject to all is, under the Constitution, entitled to their laws, is amenable to their punish- the protection of equal laws enacted by ment, and entitled to their protection. the law-enacting body of the Federal Arbitrary and despotic power can no government, is contended for by Field, more be exercised over them with refer- J., in a separate opinion in Wong Wing ence to their persons and property than v. United States, 163 U. S. 242, 41 L. ed. over the persons and property of native- 145, 16 Sup. Ct. Rep. 977, where he says born citizens. They differ only from that an alien "owes obedience to the citizens in that they cannot vote or hold laws of the country in which he is domany public office. As men having our iciled, and, as a consequence, he is enticommon humanity, they are protected by tled to the equal protection of those all the guaranties of the Constitution." laws.

"If the use of the word 'person' in the 14th Amendment protects all individuals lawfully within the state, the use of the same word 'person' in the 5th must be equally comprehensive, and secures to all persons lawfully within the territory of the United States the protection named therein; and a like conclusion must follow as to the 6th." Opinion of Brewer, J., dissenting, in Fong Yue Ting v. United States, supra. The principle stated in the dissenting opinions quoted from are in accord with the view of the majority opinions.

The court in Whitfield v. Hanges, 138 C. C. A. 199, 222 Fed. 745, said: "An alien, as well as a citizen, is protected by the prohibition of deprivation of life, liberty, or property without due process of law and the equal protection of the law. This principle is universal. It applies 'to all persons within the territorial jurisdiction of the United States, without regard to any differences of race, of color, or of nationality," "-citing Yick Wo v. Hopkins, 118 U. S. 356, 30 L. ed. 220, 6 Sup. Ct. Rep. 1064, supra. It is perhaps possible that some difficulty may be encountered in finding express constitutional authority for so much of the statement as regards the equal protection of the law, for the security is

The contention that persons within the territorial jurisdiction of this Republic might be beyond the protection of the law was heard with pain on the argument at the bar-in face of the great constitutional Amendment which declares that no state shall deny to any person within its jurisdiction the equal protection of the laws."

In the Japanese Immigrant Case (Yamataya v. Fisher) 189 U. S. 100, 47 L. ed. 725, 23 Sup. Ct. Rep. 611, the court, in deciding that an alien had been accorded due process of law, left "on one side the question whether an alien can rightfully invoke the due process clause of the Constitution who has entered the country clandestinely, and who has been here for too brief a period to have become, in any real sense, a part of our population, before his right to remain is disputed.”

In many cases, a number of which are cited infra, it has been held that the provisions of the 5th and 6th Amendments, relating to criminal prosecutions, have no application to deportation proceedings, which are civil. Proceeding apparently upon the authority of those cases the court in Re Chin Wah, 182 Fed. 256, order affirmed in 109 C. C. A. 422, 187 Fed. 592 (denying bail pending deportation proceedings), said that "the

Constitutional law - equal protection | privilege -discrimination against aliens.

12. No violation of the constitutional fit. provision guaranteeing equal protection of the laws is effected by a statute denying aliens who have not declare an intention to become citizens the right to hold land, while permitting citizens and aliens who have so declared in good faith to do so. Allens power of Congress to deny naturalization.

Congress, the courts may and must, the deprivation of when properly called upon by petition in life, limb, or property without due proc-habeas corpus, examine and determine ess of law have no application 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 the ministerial officers a 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.'"

See also Re De Giacomo, 12 Blatchf. 391, | entered contrary to law, is expelled, he Fed. Cas. No. 3,747 (holding an extradition treaty having a retrospective effect not a bill of attainder or an ex post facto law as to a person who appears to have been an alien).

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

The prohibitions on the states in § 10 of art. 1 also seem to be general in their application. Thus, in Bennett v. Harms, 51 Wis. 251, 8 N. W. 222, holding that a statute discriminating against nonresident aliens does not violate the prohibition in that section against states pass-exist, those who are excluded cannot asing laws impairing the obligations of contracts, the right of the alien to invoke the provision was assumed. As to Federal laws disturbing vested rights, see Re Chae Chan Ping, supra, holding vested rights the right to remain in, or return to, this country, as originally given by treaties-not disturbed by an act of Congress prohibiting the return of departed Chinese, there being no contract between the government and such persons.

sert the rights in general obtaining in a land to which they do not belong, as citizens or otherwise." It was later said that the court should not be understood as depreciating the vital importance of freedom of speech and of the press, but that "this case does not involve those considerations." As to the right of an alien to invoke the quantity in the Amendment, see the same case in 126 Fed. 253, and Abrams v. United States, 250 U. S. 616, 63 L. ed. 1173, 40 Sup. Ct. Rep. 17, where also the provision was invoked by aliens, but the statute attacked was held not violative of the Constitution.

The contention being made in United States ex rel. Turner v. Williams, supra (petition for writ of habeas corpus by alien held for deportation), that so much of §§ 2 and 38 of the Act of The 2d clause of the 4th Amendment, March 3, 1903 (32 Stat. at L. 1213, chap. providing that "no warrants shall issue 1012), as provided for the deportation but upon probable cause, supported by of alien anarchists, was violative of the oath or affirmation, and particularly de1st Amendment, which prohibits the pas-scribing the place to be searched, and sage of any law "respecting an estab- the persons or things to be seized," follishment of religion, or prohibiting the lows the statement that "the right of the free exercise thereof; or abridging the people to be secure in their persons, freedom of specch, or of the press; or houses, papers and effects, against unthe right of the people peaceably to as reasonable searches and seizures, shall semble, and to petition the government not be violated," and may perhaps relate for a redress of grievances," the court back to "the people" (i. e., as, that no said: "We are at a loss to understand warrants shall issue to the people); and in what way the act is obnoxious to this it is at least open to question whether objection. It has no reference to an es- the protection of guaranties extends to tablishment of religion, nor does it pro-aliens. The somewhat equivocal lanhibit the free exercise thereof; nor guage does not carry with it the force of abridge the freedom of speech or of the the more comprehensive terms employed 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

in setting out other prohibitions, and the cases involving the right of an alien to invoke Const. Amend. 4 are considered later.

Article 3 of the Constitution, setting

Courts - binding effect of state deci

sion.

18. The question whether or not a state statute conflicts with the Constitution of

the state is settled by the decision of its highest court.

[For other cases, see Courts, VII. c. 3, in Digest Sup. Ct. 1908.]

[No. 29.1

Argued April 23 and 24, 1923.

November 12, 1923.

Decided

|

APPEAL by complainants from a de

cree of the United States District Court for the Western District of Washington, dismissing a bill filed to enjoin enforcement of a statute forbidding aliens to hold real estate. Affirmed.

See same case below, 274 Fed. 841. The facts are stated in the opinion. Mr. James B. Howe argued the cause, and, with Messrs. E. H. Guie and Dallas out the judicial functions of the Federal by grand jury- Amendment 5— and government, § 2, clause 3, provides that jury trial-art. 3, § 2, cl. 3, and amend"the trial of all crimes, except in cases ment 6); United States v. Wong Dep of impeachment, shall be by jury," in the Ken, 57 Fed. 206 (jury trial); United state where the crimes are committed; States v. Wong Quong Wong, 94 Fed. if committed in no state, the trials shall 832 (provision of Amendment 5, that no be in such places as Congress provides. person shall be compelled in any crimAnd in the 5th and 6th Amendments inal case to be a witness against himnumerous guaranties relating to crim-self); United States v. Lee Huen, 118 inal prosecutions by the Federal govern- Fed. 442 (jury trial in criminal cases); ment are assured. It is provided in United States v. Hung Chang, 126 Fed. clause 1 of Amendment 5 that "no per- 400, order reversed in 67 C. C. A. 93, son," except in cases arising in the mili- 134 Fed. 19; Ex parte Orozco, 201 Fed. tary, in time of public danger, shall be 106 (discharging alien denied a speedy held to answer for a capital or other- and public trial as guaranteed in wise infamous crime unless upon a pre- Amendment 6); United States v. Premsentment or indictment of a grand jury.ises in Butte, Mont. 246 Fed. 185 (proThe 2d clause continues: "Nor shall any person" be subject for the same offense to be twice put in jeopardy of life or limb. The following clause is as inclusive, providing, "nor shall be compelled, in any criminal case, to be a witness against himself." The wording of An act of Congress providing that Amendment 6 is that "in all criminal Chinese laborers found by a commissionprosecutions, the accused shall enjoy" er to be unlawfully within this country the right to a speedy and public trial, should, before deportation, be sentenced by an impartial jury, to be informed of to imprisonment at hard labor for a pethe nature of the accusation, to be con- riod not exceeding one year, was held fronted with the witnesses against him, invalid in Wong Wing v. United States, etc. The 8th Amendment likewise re-supra, as violative of Amendments 5 lates to criminal prosecutions, prohibit- and 6, such punishment being only ap ing the requirement of excessive bail. plicable to infamous crimes within the imposition of excessive fines, and Amendment 5. An alien was ordered the infliction of cruel and unusual pun- discharged from custody in Re Ah Yuk, ishments. Only a strained construction supra, where he had been sentenced to could exclude aliens from the protection hard labor by a commissioner of immiof these clauses, and the cases nowhere gration without the benefits of the 5th show a suggestion that an alien is with- and 6th Amendments. out their security.

vision of Amendment 5 relating to selfincrimination); United States ex rel. Rennie v. Brooks, 284 Fed. 908 (prohibition against self-incrimination); Colyer v. Skeffington, 265 Fed. 17, order reversed in 277 Fed. 129.

In Ex parte Orozco, 201 Fed. 106 It has been held directly in the fol- (holding an alien is entitled to the safelowing cases that aliens residing within guards of U. S. Const. Amendments 4, the United States are protected by some 5 and 6), the court said: "But it may specific guaranty or all the guaranties be objected that the provisions of the afforded by art. 3, § 2, cl. 3, and Amend- Constitution to which reference has ments 5, 6, and 8, relating to criminal prosecutions: Wong Wing v. United States, 163 U. S. 228, 41 L. ed. 140, 16 Sup. Ct. Rep. 977 (all provisions in Amendments 5 and 6 relating to criminal prosecution); Re Ah Yuk, 53 Fed. 781 (right to indictment or presentment

been made afford no protection to foreigners, and they apply solely to our own citizens. To this objection the courts have responded in the negative." The court quotes the language of the court in Ex parte Milligan, 4 Wall. 120, 121, 18 L. ed. 295, 296, to the effect that

V. Halverstadt, filed a brief for appellants:

The state constitutional provision is exclusive of all disabilities of aliens respecting lands, and the legislature had no power to add thereto.

"the Constitution of the United States, is a law for rulers and people, equally in war and peace, and covers with the shield of its protection all classes of men, at all times and under all circum- [ stances." The case of Wong Wing v. United States, supra, is also quoted from with approval.

Oregon Mortg. Co. v. Carstens, 16 Wash. 165, 35 L.R.A. 841, 47 Pac. 421; Goon-Gan v. Richardson, 16 Wash. 373, 47 Pac. 762; State ex rel. Winston v. Morrison, 18 Wash. 664, 52 Pac. 228; State ex rel. Winston v. Iudson Land teed to any other person charged with a similar offense? Certainly not."

It was held in United States v. Hung Chang, 126 Fed. 400, order reversed in 67 C. C. A. 93, 134 Fed. 19, that an alien may invoke the provisions of Amendments 5 and 6, in deportation proceedings, on the theory that the proceedings are criminal in their nature. The court in United States v. Wong Quong Wong,

aliens.

In United States v. Wong Dep Ken, 57 Fed. 206 (holding that part of an act of Congress which provided that 94 Fed. 832, seems to have fallen into Chinese persons unlawfully within this the same error. Repeated decisions of country should be sentenced by an ad- the Federal courts have determined that, ministrative officer, without a jury trial, while an alien is entitled to due process to imprisonment at hard labor prior to of law against Federal action (Const. their expulsion, violative of the provi- Amend. 5), Congress has plenary power sions of U. S. Const. art. 3, § 3, cl. 2, both as to excluding and deporting and Amendment 6, relating to trial by aliens; and that if treatment in accordjury, and Amendment 5, providing for ance with the fundamental principles of presentment or indictment by grand due process of law, as understood at the jury, and guaranteeing due process of time of the adoption of the Constitution, law), the court said: "I am unable to is provided for such persons by acts of appreciate the force of the suggestion Congress and administrative officials exmade by the district attorney that the ecuting such laws, such is due process of provisions of the Federal Constitution law; and that the provisions of the Conapply only to citizens of the United stitution relating to criminal proceedStates and to aliens permissively there-ings have no application in proceedings in, and that its protections and safe for the exclusion or deportation of guards cannot be invoked by an alien who came into and remains in the country in violation of the express laws of the country. One obstacle in the way of adopting that view is that it assumes the very question to be determined, namely, whether the defendant did come and remain in the country, contrary to its laws. But, above and beyond that consideration, the Constitution, which has potency everywhere within the limits of our territory, covers alike with its protection every human being within it. Certainly, so long as he remains within our borders, and so long as our government remains on terms of peace and amity with the country of which he is a subject, he must be regarded as a friendly alien. If such an alien may be arbitrarily deprived of his liberty, surely he may be arbitrarily deprived of his property, and even of his life. Would anyone contend that, if the present de fendant should commit the crime of murder within the United States, the Constitution of these states would not secure to him a trial by jury, and any and every other right thereby guaran

The effect of the decisions seems to be that no guaranty as to the methods of trial and rights to personal security contained in Amendments 5, 6, and 8, and art. 3, § 2, cl. 3, is applicable to deportation proceedings except that due process must be accorded; but that if infamous punishment is to be added to exclusion or deportation, all the safeguards of a criminal trial apply.

An extended search has disclosed many cases in which the right of an alien to invoke, in proper cases, the provisions just considered, was apparently assumed, but the specific provisions invoked were held inapplicable, as the proceedings in which the rights were asserted were civil, the guaranties relating only to criminal prosecutions. These cases, while lacking the force of actual decisions or direct holdings, disclose, it seems quite clear, a general recognition on the part of the courts of the right of aliens to the constitutional guaranties in respect of criminal prosecutions.

See as to the constitutional provisions in regard to jury trial (art. 3, § 2, cl. 3)