in upon the ground that he was a native- | three days after the filing of such notice, born citizen thereof, but who, after a hearing, the lawfully designated immigration officers found was not born therein, and to whom they denied admission, which finding and denial, upon appeal to the Secretary of Commerce and Labor, was affirmed, should the court treat the finding and action of such executive officers upon the question of citizenship and other questions of fact as having been made by a tribunal authorized to decide the same, and as final and conclusive unless it be made affirmative-tigation and report by the said officer in ly to appear that such officers, in the case submitted to them, abused the discretion vested in them, or, in some other way, in hearing and determining the same, committed prejudicial error?"

port, which, in this case, was the place of landing), he may not have the means of employing counsel to present his case to the Secretary. If this be not a star-chamber proceeding of the most stringent sort, what more is necessary to make it one?

compelling them to quit a city, place, or country, for a specific period of time, or for life. It is inflicted principally upon political offenders, 'transportation' being the word used to express a similar punishment of ordinary criminals." The same author defines "exile" as banishment, and "trans

I do not see how any one can read those rules and hold that they constitute due proc-portation" as "a species of punishment coness of law for the arrest and deportation of a citizen of the United States. If they do in proceedings by the United States, they will also in proceedings instituted by a state, and an obnoxious class may be put beyond the protection of the Constitution by ministerial officers of a state, proceeding in strict accord with exactly similar

rules.

It will be borne in mind that the petitioner has been judicially determined to be a free-born American citizen, and the contention of the government, sustained by the judgment of this court, is that a citizen, guilty of no crime-for it is no crime for a citizen to come back to his native landmust, by the action of a ministerial officer, be punished by deportation and banishment, without trial by jury and without judicial examination.

Such a decision is, to my mind, appalling. By all the authorities the banishment of a citizen is punishment, and punishment of the severest kind. In Fong Yue Ting v. United States, 149 U. S. 698, 37 L. ed. 905, 13 Sup. Ct. Rep. 1016, it was held by a majority of the court that the removal from this country of an alien was not a punishment, Mr. Justice Gray, speaking for that majority, saying (p. 730, 37 L. ed. 919, 13 Sup. Ct. Rep. 1028):

sisting in removing the criminal from his own country to another (usually a penal colony), there to remain in exile for a prescribed period." In Rapalje & Lawrence's Law Dictionary (vol. 1, page 109), "banishment" is called: "A punishment by forced exile, either for years or for life; inflicted principally upon political offenders, 'transportation' being the word used to express a similar punishment of ordinary criminals." In 4 Bl. Com. 377, it is said: "Some punishments consist in exile or banishment, by abjuration of the realm, or transportation." Vattel, Nations, bk. 1, § 228, declares: "As a man may be deprived of any right whatsoever by way of punishment; exile, which deprives him of the right of dwelling in a certain place, may be inflicted as a punishment; banishment is always one; for a mark of infamy cannot be set on any one but with a view of punishing him for a fault, either real or pretended."

President Madison, in his report on the Virginia resolutions concerning the alien and sedition laws, said (4 Elliott's Debates, 455), referring to the possibilities which attend a removal from the country, "if a banishment of this sort be not a punishment, and among the severest of punishments, it will be difficult to imagine a doom to which the name can be applied."

The 12th section of the English habeas corpus act (31 Car. II.), one of the three great muniments of English liberty, enact

"The proceeding before a United States judge, as provided for in § 6 of the act of 1892 [27 Stat. at L. 25, chap. 60, U. S. Comp. Stat. 1901, p. 1320], is, in no proper sense, a trial and sentence for a crime ored "that no subject of this realm, that now offense. It is simply the ascertainment, by appropriate and lawful means, of the fact whether the conditions exist upon which Congress has enacted that an alien of this class may remain within the country. The order of deportation is not a punishment for crime. It is not a banishment, in the sense in which that word is often applied to the expulsion of a citizen from his country by way of punishment."

is or hereafter shall be an inhabitant or resident of this kingdom of England, dominion of Wales, or town of Berwick-uponTweed, shall or may be sent prisoner into Scotland, Ireland, Jersey, Guernsey, Tangier, or into parts, garrisons, islands, or places beyond the seas, which are or at any time hereafter shall be within or without the dominions of his majesty, his heirs or successors; and that every such imprisBut it was not suggested, and indeed onment is hereby enacted and adjudged to could not be, that the deportation and ex- be illegal, and the person or perile of a citizen was not punishment. The sons who shall knowingly frame, contrive, forcible removal of a citizen from his coun- write, seal, or countersign any warrant for try is spoken of as banishment, exile, de- such commitment, detainer, or transportaportation, relegation, or transportation; tion, or shall so commit, detain, imprison, but, by whatever name called, it is always or transport any person or persons, conconsidered a punishment. In Black's Law❘ trary to this act, or be any ways advising, Dictionary "banishment" is defined as "a aiding, or assisting therein, being lawfully punishment inflicted upon criminals, by convicted thereof shall be disabled from

thenceforth to bear any office of trust or that ground, applies to any United States profit within the said realm of England, court for a writ of habeas corpus, is endominion of Wales, or town of Berwick-titled to have a hearing and a judicial deupon-Tweed, or any of the islands, terri- termination of the facts so alleged; and tories, or dominions thereunto belonging; that no act of Congress can be understood and shall incur and sustain the pains, or construed as a bar to such hearing and penalties, and forfeitures limited, ordained, judicial determination." and provided in and by statute of provision and praemunire, made in the sixteenth year of King Richard II.; and be incapable of any pardon from the king, his heirs or successors, of the said forfeitures, losses, or disabilities, or any of them." [3 Stat. at L. 400, chap. 2.]

It is true in this case the petitioner was returning to San Francisco from China. Whether his absence from this country had been for a few weeks or a few years is not shown, nor does it matter. The right of a citizen is not lost by a temporary absence from his native land, and when he returns he is entitled to all the protection which he had when he left.

In Gonzales v. Williams, 192 U. S. 1, 48 L. ed. 317, 24 Sup. Ct. Rep. 177, the petitioner, held in custody by the immigration officers, sued out a habeas corpus on the ground that she was not an alien immigrant. The circuit court decided against her, but on appeal we discharged her from custody, saying (p. 7, L. ed. p. 319, 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 of 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), the commissioner had no power to detain or deport her, and the final order of the circuit court must be reversed."

So

It is true, the facts were admitted. placing that case alongside of this, the result is that if the United States admits that the petitioner is not an alien, he is entitled to his discharge. If he proves the fact, he is not entitled, but must be deported. It was It was not suggested in that case that the immigration officer had been guilty of any abuse of discretion or powers, the only complaint being that he had ordered the deportation of the petitioner, who was not an alien. That same fact is alleged here, but, is now adjudged insufficient to prevent the deportation. In Gee Fook Sing v. United States, 1 C. C. A. 211, 212, 7 U. S. App. 27, 30, 49 Fed. 146, 148, the court of appeals of the ninth circuit held:

"That any person alleging himself to be a citizen of the United States, and desiring to return to his country from a foreign land, and that he is prevented from doing so without due process of law, and who, on

See also Re Look Tin Sing, 10 Sawy. 353, 21 Fed. 905; Ex parte Chan San Hee, 35 Fed. 354; Re Yung Sing Hee, 36 Fed. 437; Re Wy Shing, 13 Sawy. 530, 36 Fed. 553. In the first of these cases it was said by Mr. Justice Field (p. 361, Fed. p. 910):

"Being a citizen, the law could not intend that he should ever look to the government of a foreign country for permission to return to the United States, and no citizen can be excluded from this country except in punishment for crime. Exclusion for any other cause is unknown to our laws, and beyond the power of Congress."

In Ex parte Tong Tong, 108 U. S. 556, 559, 27 L. ed. 826, 827, 2 Sup. Ct. Rep.` 871, 872, Mr. Chief Justice Waite said:

"The writ of habeas corpus is the remedy which the law gives for the enforcement of the civil right of personal liberty."

In United States v. Jung Ah Lung, 124 U. S. 621, 31 L. ed. 591, 8 Sup. Ct. Rep. 663, a petition for habeas corpus by a Chinese laborer, it was held that

"The jurisdiction of the court was not affected by the fact that the collector had passed on the question of allowing the person to land, or by the fact that the treaty provides for diplomatic action in case of a hardship."

By the 5th Amendment to the Constitution no person can "be deprived of life, liberty, or property without due process of law." It may be true, as decided in Den ex dem. Murray v. Hoboken Land & Improv. Co. 18 How. 272, 15 L. ed. 372, an action involving the validity of a distress warrant issued by the Solicitor of the Treasury, that the requirement of a judicial trial does not extend to every case, but, as stated by Mr. Justice Curtis in that case (p. 284, L. ed. p. 377): "To avoid misconstruction upon so grave a subject, we think it proper to state that we do not consider Congress can either withdraw from judicial cognizance any matter which, from its nature, is the subject of a suit at the common law, or in equity or admiralty; nor, on the other hand, can it bring under the judicial power a matter which, from its nature, is not a subject for judicial determination." And in Hager v. Reclamation Dist. No. 108, 111 U. S. 701, 708, 28 L. ed. 569, 572, 4 Sup. Ct. Rep. 663, 667, it was held that "undoubtedly where life and liberty are involved, due process requires that there be a regular course of judicial proceedings,

which imply that the party to be affected | Chinese descent, and limit that jurisdiction shall have notice and an opportunity to be to Chinese aliens. In United States v. heard." By article 3, § 2 of the Constitu- Wong Kim Ark, 169 U. S. 649, 42 L. ed. tion, "the trial of all crimes, except in cases 890, 18 Sup. Ct. Rep. 456, it is stated (p. of impeachment, shall be by jury;" and by 653, L. ed. p. 892, Sup. Ct. Rep. p. 458): the 5th Amendment, "no person shall be held to answer for a capital or otherwise infamous crime unless on a presentment or indictment of a grand jury."

Summing this up, banishment is a punishment, and of the severest sort. There can be no punishment.except for crime. This petitioner has been guilty of no crime, By the act of August 18, 1894 (28 Stat. and so judicially determined. Yet, in defi- | at L. 390, chap. 301, U. S. Comp. Stat. 1901, ance of this adjudication of innocence, with only an examination before a ministerial officer, he is compelled to suffer punishment as a criminal, and is denied the protection of either a grand or petit jury.

The recital in the

in the limits of the state of New Jersey, and | of the petition. therefore was not violating its statute. In proceedings in Pennsylvania of the facts necessary to show jurisdiction may be contradicted. Thompson v. Whitman, 18 Wall. 457, 21 L. ed. 897."

the opinion, by Mr. Justice Bradley, this quotation was made from the opinion of Chief Justice Marshall in Rose v. Himely, 4 Cranch, 269, 2 L. ed. 617:

66

'Upon principle,' says Chief Justice Marshall, 'it would seem that the operation of every judgment must depend on the power of the court to render that judgment; or, in other words, on its jurisdiction over the subject-matter, which it has determined. In some cases that jurisdiction unquestionably depends as well on the state of the thing as on the constitution of the court. If, by any means whatever, a prize court should be induced to condemn, as prize of war, a vessel which was never captured, it could not be contended that this condemnation operated a change of property. Upon principle, then, it would seem that, to a certain extent, the capacity of the court to act upon the thing condemned, arising from its being within or without their jurisdiction, as well as the constitution of the court, may be considered by that tribunal which is to decide on the effect of the sentence." "

I have always supposed that a judgment of a court of competent jurisdiction was at least as conclusive as the finding of a ministerial officer, and that the right of personal liberty was as sacred in the eyes of the law as the title to a sloop.

Turning now to the action of ministerial or administrative officers, and what has been the uniform ruling of this court? Take the Land Department. Questions of fact within the undoubted jurisdiction of that Department are considered as settled by its rulings. But questions of fact upon which its jurisdiction rests are never so regarded. Thus, whether a tract of public land be swamp, mineral, or agricultural, may be finally determined by the Department; but whether a tract is public land is not so determined, and in all the multitude of cases that have been presented to this court it has never even been suggested that a ruling of the Department that a tract was public land was conclusive unless it appeared that the Land Department was guilty of some abuse of its discretion or powers. The question, and the only question, has been, Was the tract public land or not? In United States v. Stone, 2 Wall. 525, 17 L. ed. 765, it appeared that a tract of land adjacent to a military post had been at one time surveyed, and by that survey was included within the military reservation. Subsequently a new survey was had, by which this tract was excluded, and thereafter it was, in due course of administration, pat

Rose's "Notes on United States Reports" show that a multitude of cases, both state and Federal, rely upon Thompson v. Whitman as authority. Among them is Scott v. McNeal, 154 U. S. 34, 38 L. ed. 896, 14 Sup. Ct. Rep. 1108, in which it was held that a court of probate, having jurisdiction in the administration of deceased persons, had no jurisdiction to appoint an administrator of one who was alive, although he had been absent, and not heard from for seven years, and that a sale made by the administrator appointed in such a case passed no title. It was cited approvingly in Andrews v. An-ented. Thereupon this suit was brought to drews, 188 U. S. 14, 47 L. ed. 366, 23 Sup. Ct. Rep. 237. There a decree of divorce, rendered by a South Dakota court, in a case in which both parties were in court, and in which the court found not only that there were sufficient grounds for divorce, but also that the plaintiff had been a bona fide resident of South Dakota for the statutory length of time, and therefore had the requisite status to give that court jurisdiction, could be upset in Massachusetts by proof that the plaintiff was not in fact a bona fide resident of South Dakota. The same case was also relied upon as authority in Bell v. Bell, 181 U. S. 175, 177, 45 L. ed. 804, 805, 21 Sup. Ct. Rep. 551, 552, where we said:

"No valid divorce from the bond of matrimony can be decreed on constructive service by the courts of a state in which neither party is domiciled. And by the law of Pennsylvania every petitioner for a divorce must have had a bona fide residence within the state for one year next before the filing

set aside the patent. It was not suggested that the Land Department had been guilty of any irregularity in administration, or had not proceeded in accordance with the established rules of procedure; yet the court unanimously held that the patent must be set aside, on the ground that the land was reserved to the United States as a part of the military reservation by the original survey. In St. Louis Smelting Co. v. Kemp, 104 U. S. 636, 641, 26 L. ed. 875, 876, we said:

"Of course, when we speak of the conclusive presumptions attending a patent for lands, we assume that it was issued in a case where the Department had jurisdiction to act and execute it; that is to say, in a case where the lands belonged to the United States, and provision had been made by law for their sale. If they never were public property, or had previously been disposed of, or if Congress had made no provision for their sale, or had reserved them, the De