Co. 19 Wash. 85, 40 L.R.A. 430, 52 Pac. | Atkinson v. World Real Estate Commercial Co. 46 Wash. 104, 89 Pac. 471; State ex rel. Atkinson v. Evans, 46 Wash. 219, 10 L.R.A.(N.S.) 1163, 89 Pac. 565; State ex rel. Barker v. Assurance Co. 251 Mo. 278, 46 L.R.A. (N.S.) 955, 158 S. W. render it not obnoxious to the constitutional provisions guaranteeing jury trial in criminal cases, and that to construe the part thereof allowing imprisonment as detention, and not a punishment, had the desired effect. 574; State ex rel. Morrell v. Stevens A proceeding to enforce regulations relating to admission or expulsion of aliens is not a criminal prosecution to which the constitutional guaranties in respect of criminal trials are applicable, even though the proceeding may involve the determination of guilt of acts constituting an infraction of the criminal laws of a state. Zakonaite v. Wolf, 226 U. S. 272, 57 L. ed. 218, 33 Sup. Ct. Rep. 31, supra. Section 4, Act of Congress of May 5, 1892, in regard to expulsion of Chinese "convicted and adjudged to be not lawfully entitled to be or remain in the United States," which provides that they "shall be imprisoned at hard labor for a period not exceeding one year, and thereafter removed from the United States. though employing criminal terms, is not a criminal statute, but political. United States v. Hing Quong Chow, 53 Fed. 233, supra. The provision of the 5th Amendment, that no person shall be compelled in any criminal case to be a witness against himself, seems to have been recognized to protect aliens in criminal cases. The following cases, however, hold it inapplicable in deportation proceedings, they not being criminal in their nature: United States ex rel. Bilokumsky v. Tod, 263 U. S. 149, ante, 221, 44 Sup. Ct. Rep. 54; United States v. Lee Huen, 118 Fed. 442; Low Foon Yin v. United States Immigration Comr. 76 C. C. A. 355, 145 Fed. 791; Law Chin Woon v. United States, 77 C. C. A. 369, 147 Fed. 227; United States v. Tom Wah, 160 Fed. 207, affirmed in 90 C. C. A. 178, 163 Fed. 1008; United States ex rel. Rennie v. Brooks, 284 Fed. 908. Contra: United States v. Wong Quong Wong, 94 Fed. 832. That aliens may, in criminal cases, claim the benefit of the provisions of the 6th Amendment, securing the right to defendants to have compulsory process for obtaining witnesses in their favor, seems recognized in Low Wah Suey v. Backus, 225 U. S. 460, 56 L. ed. 1165, 32 Sup. Ct. Rep. 734, holding, however, that the right could not be claimed in a civil proceeding. See also the comment therein on the decision in Yeung How v. North, per curiam opinion in 223 U. S. 705, 56 L. ed. 621, 32 Sup. Ct. Rep. 517. Constitution, Amendment 5, prohibiting double jeopardy, applies only to criminal proceedings, and finds no application in proceedings for the deportation of an alien. Sire v. Berkshire, 185 Fed. 967. On habeas corpus proceedings to obtain release from custody under order of an administrative officer that Chinese aliens be imprisoned for twenty days at hard labor, it was held in Re Sing Lee, 54 Fed. 334, that the confinement should "Excessive bail shall not be required, not have been imposed for a definite nor excessive fines imposed, nor cruel term, but only until the person could and unusual punishments inflicted." U. be deported; and that had the twenty S. Const. Amend. 8. This protection days' definite imprisonment not expired, against such action on the part of Fedthe petitioner would be entitled to free-eral authorities seems to have been recdom. The court, observing that the ognized as applying to aliens in Fong statute relating to deportation made no Yue Ting v. United States, 149 U. S. provision for jury trial, said it should 698, 37 L. ed. 905, 13 Sup. Ct. Rep. 1032, be given a construction, if possible, to holding the security against cruel and 640, Ann. Cas. 1915A, 247; Prentice v. rel. Ellis v. Cuyahoga County, 70 Ohio How, 84 Wash. 136, 146 Pac. 388; Roger St. 341, 71 N. E. 717; State ex rel. v. Whitham, 56 Wash. 193, 134 Am. St. Tanner v. Rychen, 113 Wash. 90, 193 Rep. 1105, 105 Pac. 628, 21 Ann. Cas. Pac. 220; Doe ex dem. Governeur v. 272; State ex rel. Tanner v. Staeheli, Robertson, 11 Wheat. 332, 6 L. ed. 488; 112 Wash. 344, 192 Pac. 991; State ex Hauenstein v. Lynham, 100 U. S. 483, unusual punishments to have no appli- alien arrested by military authorities cation in deportation proceedings. It without a warrant, as secured in Amendhas also been held that aliens have no ment 4; "The foreigner, equally with the constitutional right to demand bail in native born, may invoke their [Amenddeportation proceedings. Re Chin Wah, ments 4, 5, and 6] aid to guard against 182 Fed. 256, order affirmed in 109 C. the assaults of arbitrary power"); Ex C. A. 422, 187 Fed. 592. parte Toscano, 208 Fed. 938 (holding that due process being accorded citizens of the Republic of Mexico, interned as provided by a treaty, the 4th Amendment is not violated); Moy Wing Sun v. Prentis, 148 C. C. A. 40, 234 Fed. 24 (holding alien's "constitutional rights were not in any event invaded" by letters being seized to which the alien Constitution, Amendment 6, has no application to alien persons interned as provided by treaty. Ex parte Toscano, 208 Fed. 938. In addition to the cases above cited, see, generally, Ex parte Jackson, 263 Fed. 110, where the position is taken, arguendo, that aliens are entitled to all the constitutional rights of personal se-disclaimed ownership); Tsuie Shee v. curity. Recitation of authority is hardly necessary to sustain the statement that aliens may claim the protection secured by the 13th Amendment, forbidding slavery and involuntary servitude except as punishment for crime. The provision declares that "neither slavery nor involuntary servitude . . shall exist within the United States, or any place subject to their jurisdiction." This provision was held, in Re Sah Quah, 31 Fed. 327, to run in Alaska, to prevent slavery under a tribal custom of Alaskan Indians, "not citizens within the full meaning of that term." The provision was invoked by alien seamen in Re Chung Fat, 96 Fed. 202, and the court placed the shipowner under bond to prevent later involuntary servitude as to the petitioners, or to recompense them if the constitutional provision should be violated, in contravention of their rights. An alien declarant was held, in United States ex rel. Pfefer v. Bell, 248 Fed. 992, not denied the protection of the Amendment by being inducted into the national Army under the Draft Act. The provisions of the 5th, 6th, and 13th Amendments of the Constitution apply as well as to Chinese persons who are aliens as to American citizens." Opinion of Field, J., in Wong Wing v. United States, 163 U. S. 242, 41 L. ed. 145, 16 Sup. Ct. Rep. 977. An alien is entitled to freedom from unreasonable searches and seizures, as secured in the 4th Amendment. United States v. Wong Quong Wong, supra; Ex parte Orozco, 201 Fed. 106 (discharging, on a writ of habeas corpus, an Bachus, 156 C. C. A. 249, 243 Fed. 551; In United States v. Wong Quong 25 L. ed. 628; Munnemacher v. State, 50, takes the property of the parties 129 Wis. 190, 9 L.R.A. (N.S.) 121, 108 N. W. 627, 9 Ann. Cas. 711; United States v. Arredondo, 6 Pet. 691, 725, 8 L. ed. 547, 560. The Alien Land Law of 1921, chap. without due process of law, in that it prohibits Nakatsuka from following a common occupation of the community, and makes it a criminal offense for the Terraces to avail themselves of Nakat A corporation is entitled to protec evidence a letter procured by unreason- | evidence in violation of the search and able seizure), the court said: "Papers seizure clause. procured in this way cannot be used in evidence against persons from whom tion from unreasonable searches and they are procured without violating the seizures (Silverthorne Lumber Co. v. protection afforded by the Amendments United States, 251 U. S. 385, 64 L. ed. to all persons in this country." The 319, 24 A.L.R. 1426, 40 Sup. Ct. Rep. case was an appeal from orders of de- 182; Federal Trade Commission v. Amerportation, and the appellants were held ican Tobacco Co. 264 U. S. 298, post, to have established their right to remain, 32 A.L.R. 786, 44 Sup. Ct. Rep. 336; their evidence to show birth in this Hale v. Henkel, 201 U. S. 43, 50 L. ed. country not being successfully rebutted 652, 26 Sup. Ct. Rep. 370). From this, by evidence lawfully obtained. In con- Anderson, J., concluded in Colyer v. cluding the opinion the court said: Skeffington, 265 Fed. 27, order reversed "That the government can, by executive in 277 Fed. 129, that, a fortiori, a peror judicial officers, exclude or expel son, though an alien, is protected by the aliens, is not in any manner to be ques-clause. tioned; but aliens, while here, are entitled to the benefit of these guaranties, which are not confined to citizens, as affecting birth and property. These appellants claim to be citizens by birth; and whether they are such or not is the only question here, and that should not be determined upon what would be in violation of their rights as citizens, even if not extending to aliens. If citizens, they cannot be lawfully deported; and the question whether they are or not should be carefully tried, with due regard to their constitutional rights." In United States ex rel. Bilokumsky v. Tod, 263 U. S. 149, ante, 221, 44 Sup. Ct. Rep. 54, holding evidence used in deportation proceedings not obtained by a search and seizure, the court said: "It may be assumed that evidence obtained by the Department [of Labor] through an illegal search and seizure cannot be made the basis of a finding in deportation proceedings." It had been held previously, however, that the provision relating to searches and seizures has no application in habeas corpus proceedings brought by an alien to secure his discharge from custody into which he was taken for failure to comply with An act of Congress requiring Chinese laborers to obtain a certificate of registration and identification. Fong Yue Ting v. United States, 149 U. S. 698, 37 L. ed. 905, 13 Sup. Ct. Rep. 1016; Be Chin Wah, 182 Fed. 256, order affirmed in 109 C. C. A. 422, 187 Fed. 592. Deportation proceedings were held unfair and invalid in Ex parte Jackson, 263 Fed. 110, as they were based upon Authorities for construction of the terms setting out the beneficiaries of guaranties secured by the Constitution in Amendment 4 are rare. Brewer, J., dissenting in Fong Yue Ting v. United States, 149 U. S. 698, 37 L. ed. 905, 13 Sup. Ct. Rep. 1016 (taking the posi tion that an act of Congress providing for the deportation of Chinese persons unlawfully within the United States through a certain administrative proceeding was in contravention of the 4th, 5th, 6th, and 8th articles of the Amendments), said that when the first ten Amendments were presented for adoption they were preceded by a preamble stating that the conventions of many states had, at the time of their adopting the Constitution, expressed the desire, "in order to prevent misconception or abuse of its powers, that further preparatory and restrictive clauses should be added." "It is worthy of notice," the learned court observed, "that the word 'citizen' is not found. In some of them the descriptive word is 'people;' but in the 5th it is broader, and the word is 'person;' and in the 6th it is the 'accused; while in the 3d, 7th, and 8th there is no limitation as to the beneficiaries suggested by any descriptive word." While the constitutional provisions in which the rights of "the people" to certain guaranties are secured have generally been held, or assumed, to be applicable to aliens as well as citizens, the language of the Constitution is susceptible of a construction which would exclude aliens from the operation of suka's services in any capacity other | 111 U. S. 746, 754, 28 L. ed. 585, 588, than a mere wage earner, and prohibits 4 Sup. Ct. Rep. 652; Barbier v. Connolly, them from making a lawful use of their property. 113 U. S. 27, 31, 28 L. ed. 923, 924, 5 Sup. Ct. Rep. 357; Powell v. Pennsyl Butchers' Union S. H. & L. S. L. Co. vania, 127 U. S. 678, 699, 32 L. ed. 253, v. Crescent City L S. L. & S. H. Co. 261, 8 Sup. Ct. Rep. 992, 1257; Allgeyer such clauses. The preamble to the Con- tution guaranteeing immunity from unstitution starts: "We, the people of the reasonable searches and seizures inapUnited States, in order to se-plicable to slaves, the court pointed out cure the blessings of liberty to ourselves that the clause was nearly exactly the and our posterity, do ordain and estab- same as that relating to the same sublish this Constitution. "When, ject in the Constitution of the United following this, we find such provisions States, and that it could not be seriously as: "The right of the people to be se- contended that the term "the people" cure in their persons included slaves. See also Opinion of etc., against unreasonable searches and seiz- Justices, 122 Mass. 594, and id. 7 Mass. ures, shall not be violated. "523, construing the term "the people" (Amendment 4); "the right of the peo- and "all the inhabitants," as used in ple peaceably to assemble, and to petition the Constitution of Massachusetts, to the government for a redress of griev- exclude aliens not naturalized. See, to ances," shall not be denied by law of the same effect, Blair v. Ridgeley, 41 Congress (Amendment 1); "the right of Mo. 63, 97 Am. Dec. 248; State ex rel. the people to keep and bear arms shall Thayer v. Boyd, 31 Neb. 682, 48 N. W. not be infringed" (Amendment 2,-there 739, 51 N. W. 602. Compare People ex is at least a possibility that the term rel. Elder v. Sours, 31 Colo. 369, 102 "the people" relates back to "the people Am. St. Rep. 34, 74 Pac. 188; Salina of the United States." Some force is v. Blaksley, 72 Kan. 230, 3 L.R.A.(N.S.) added to this view by the fact that 168, 115 Am. St. Rep. 196, 83 Pac. 619, other liberties secured in the Bill of 7 Ann. Cas. 925; Solon v. State, 54 Rights are not guaranteed to "the peo-Tex. Crim. Rep. 261, 114 S. W. 349. ple," but are couched in more compre- In Weeks v. United States, 232 U. S. hensive terms; as that "no person shall 392, 58 L. ed. 655, L.R.A.1915B, 834, 34 be held to answer for a capital or other- Sup. Ct. Rep. 344, Ann. Cas. 1915C, wise infamous crime, unless on present-1177, it is said that the Bill of Rights ment or indictment of a grand jury of the Constitution was embodied in that (Amendment 5); "In all instrument for the purpose of "securing criminal prosecutions, the accused shall to the American people" certain safeenjoy the right to a speedy and public guards; mentioning, among others, freetrial etc." (Amendment 6); dom from unreasonable searches and and a later recurrence to the use of the seizures. In the same case the court term "the people" when reserving rights quotes from Cooley's Constitutional Limproperly inhering only in citizens; e. g., itations, pages 425, 426, to the effect "The enumeration in the Constitution that the clause prohibiting unreasonable of certain rights shall not be construed searches and seizures "has always been to deny or disparage others retained by looked upon as of high value to the citithe people" (Amendment 9); "The pow-zens." And the court later states that ers not delegated are reserved letters and papers unlawfully seized cannot be "held and used in evidence against a citizen." Thus, through the opinion the beneficiary of the guaranty is referred to as "the citizen;" but it cannot be asserted with any degree of confidence that the term was used either in contradistinction to "aliens," or in the general sense of the word as applied to residents.. to the states respectively, or to the people." Such a construction has been given clauses in the Bill of Rights of the Constitution of Connecticut. State v. Sinchuk, 96 Conn. 605, 20 A.L.R. 1515, 115 Atl. 33, holding a constitutional provision stating the inherent right of "the people" to alter "their form of government" not to affirm the right to aliens. "The proposition that aliens have an undeniable and indefeasible right to alter our form of government will hardly bear statement," the court said. In Jackson v. Bulloch, 12 Conn. 38 (cited by the court in the Sinchuck Case), holding a provision of the state Consti "The people of the United States" has been construed to be synonymous with "citizens." Scott v. Sanford, 19 How. 404, 15 L ed. 691; Boyd v. Nebraska, 143 U. S. 135, 36 L. ed. 103, 12 Sup. Ct. Rep. 375; Re Silkman, 88 App. Div. 102, 84 N. Y. Supp. 1025. The term "the v. Louisiana, 165 U. S. 578, 589, 41 L. 1960, 35 Sup. Ct. Rep. 240; Truax v. Raich, 239 U. S. 33, 41, 60 L. ed. 131, 135, L.R.A.1916D, 545, 36 Sup. Ct. Rep. 7, Ann. Cas. 1917B, 283; Adams v. Tanner, 244 U. S. 590, 61 L. ed. 1336, L.R.A. 1917F, 1163, 37 Sup. Ct. Rep. 662, Ann. ed. 832, 835, 17 Sup. Ct. Rep. 427; Yick Wo v. Hopkins, 118 U. S. 356, 370, 30 Led. 220, 226, 7 Sup. Ct. Rep. 1064; Coppage v. Kansas, 236 U. S. 1, 14, 19, 59 L. ed. 441, 446, 448, L.R.A.1915C, people" is used in article 9 of the 312 (upholding, before the adoption of Amendment, where it provided that "the the 14th Amendment, a state tax on forenumeration in the Constitution of cer-eign miners); Lin Sing v. Washburn, tain rights shall not be construed to deny or disparage others retained by the people." That this refers back to "the people of the United States" in the preamble seems hardly open to question. It is said in United States ex rel. Turner v. Williams, 194 U. S. 279, 48 L. ed. 979, 24 Sup. Ct. Rep. 719, that an alien not permitted to enter this country "does not become one of the people," to whom the right to assemble and petition the government for a redress of grievances is secured, by an attempt to enter, forbidden by law. The effect of the holding seems to be that the term "the people," as used in the provision considered by the court in the case, includes aliens unlawfully within the country. supra (holding invalid, as in conflict with clauses 1 and 3 of art. 1, § 8, a state statute imposing a special capitation tax on coolie laborers). There are, in addition to the classified groups of constitutional provisions above considered, other clauses to which an alien may look for protection. Aliens may invoke Const. Art. 1, § 8 cl. 1, whereby Congress is given the power to lay and collect duties and imposts. Lin Sing v. Washburn, 20 Cal. 534, holding invalid, as in contravention of that clause and clause 3 of the same section, a state statute imposing a special tax on Chinese laborers. See, to the same effect, People v. Raymond, 34 Cal. 492. It cannot be seriously doubted but that an alien can successfully invoke art. 1, § 8, cl. 4, in which Congress is given the power to establish uniform rules of naturalization. And a state cannot, under § 1 of the 14th Amendment, impose additional requirements on aliens. The cases touching on the clause (see 1 R. C. L. 847 et seq., 2 C. J. 1112 et seq.) deal only with its application, and not with the power of aliens to invoke the provision, and no attempt has been made to gather the cases having alien parties in which the clause was considered. States are expressly forbidden, unless. with the consent of Congress, to lay any imposts or duties on imports or exports, except what may be absolutely necessary for executing their inspection laws. See Passenger Cases and People v. Raymond, supra, as to the right of an alien under this limitation. In People ex rel. Atty. Gen. v. Naglee, supra, it is assumed that aliens can assert the power of Congress to make rules and regulations regarding the pubic lands (art. 4, § 3, cl. 2). Tex. An alien seeking the benefit of some By the 3d clause of § 8, art. 1, Con- treaty provisions is, of course, indirectly gress is given the power to regulate com- calling for the protection of art. 2, 8 merce with foreign nations. It has been 2, cl. 2, whereby power is given the held that aliens may invoke this provi- President, with the advice and consent sion against usurpation of the power by of the Senate, to make treaties, and art. 4 state. Such is the force of the deci- 6, § 2, in which treaties are declared to sion in Passenger Cases, 7 How. 283, 12 be a part of the supreme law of the Led. 702, though the judges did not land. See this illustrated in Terrace agree on the application of the provision v. Thompson, 274 Fed. 844 (and cases and there is no opinion of the court. there cited); Poon v. Miller, See, as to the same provision, New York Civ. App., 234 S. W. 573 (holding 7. Compagnie Générale Transatlantique, invalid a state statute as standing in 107 U. S. 59, 27 L. ed. 383, 2 Sup. Ct. opposition to a treaty and in violation Rep. 87, and see s. c. 10 Fed. 357; Chy of Amendment 14); Bondi v. McKay, Lung v. Freeman, 92 U. S. 275, 23 L. 87 Vt. 271, 89 Atl. 228, Ann. Cas. 1916C, ed. 550 (holding a California statute 130; Wunderle v. Wunderle, 144 Ill. 40, unconstitutional as being violative of 19 L.R.A. 84, 33 N. E. 195; Yeaker v the clause, the power of Congress to Yeaker, 4 Met. (Ky.) 33, 81 Am. Dec. make laws regulating foreign commerce 530. being exclusive); People ex rel. Atty. A person born in the United States, Gen, v. Naglee, 1 Cal. 232, 52 Am. Dec. but expatriated under an act of Congress |