The Immigrant's Bill of Rights
Much of the opposition which at one time threatened to prevent the ratification of the Constitution, framed at the memorable convention of 1787 in Philadelphia, was justified by a most serious omission in the structure of that instrument.
The omission was nothing less than a failure essentially to recognize the ultimate object for which constitutions are created. The attention of the delegates had been concentrated on the frame while the foundation, corresponding with the individual rights of the citizens for whom the government was to be erected, seemingly had been ignored.
It became necessary to supply the deficiency. Instead of altering the completed structure, however, it was pro-posed to add a series of amendments which should adequately recognize and guard the claims of the common people.
The so-called Bill of Rights was accordingly framed. Presented in the form of ten amendments this Bill of Rights became a part of the Constitution as finally adopted. The prime object in the minds of the delegates, as reflected in the preamble of the Constitution, was to secure the blessings of liberty to the "people of the United States" and their "posterity."
Little did they conceive, however, of the future development of the nation that they were founding.
In the strongest flights of imagination, they could scarcely have grasped the eventual significance of the term posterity which now relates to a population of eighty-five million. Nor would they have believed that the Constitution might one day protect millions who could not, technically speaking, be called the "people of the United States."
Nevertheless, it is true that our vast immigrant population enjoys on a practical basis of equality the rights guaranteed to the citizens that compose the nation.
It is not enough to say, however, that immigration legislation has been inspired by the spirit of the Constitution. The active manifestation of that spirit in recent years has culminated in the Immigration Act approved February 20, 1907, which in effect constitutes the immigrant's bill of rights.
To acknowledge this fact is merely to recognize a notable expression of that universally advancing spirit of humanity which, despite many appearances to the contrary, is the distinguishing mark of modern civilization.
Nevertheless, the example of the United States is unique among the great nations in respect to its attitude toward the individual immigrant and toward the immigrant as an individual.
It would hardly be possible, for example, elsewhere to secure the enactment of such an elaborate legal system for safeguarding the interests of the alien immigrant as is found in the act of Congress to which reference is made.
This statement does not necessarily imply a corresponding neglect of the rights of the citizens of the United States nor the omission of measures designed to guard their interests. Those classes of aliens, in other words, that are deemed by general consent to be totally undesirable, are excluded from admittance.
Thus, provision is made for the absolute exclusion of aliens afflicted with tuberculosis or with a loathsome or dangerous, contagious disease, as well as idiots, imbeciles, feeble-minded persons, epileptics, insane persons, persons who, have been insane within five years previously, persons who have had two or more attacks of insanity at any time previous to arrival, and persons certified to have a mental defect which may affect their ability to earn a living.1
From the excluding decision of the immigration officers at the port of arrival, in the case of an alien found to be within any of the foregoing classes, there is no appeal. But an alien de-barred for other cause-such as pauperism or as being a contract-laborer-has the right of appeal to the Secretary of the Department of Commerce and Labor at Washington.
The secretary may, after reviewing all the evidence, reverse the decision rendered at the port of arrival and permit landing. Thus, aliens to the number of 1,600, debarred during the fiscal year of I908, availed themselves of this privilege, and in about one-half the cases the appeal was sustained.
Of this number two hundred and fifty were landed under bond. Some six hundred and fifty additional were also admitted on bond as provided by law, in reference to certain types of medical cases.2
One would suppose that the responsibility of the federal government in the case of a rejected immigrant, or of an alien ordered deported, ceased at the time of his delivery aboard the vessel selected for his passage to the country whence he came. Experience, however, has proved the contrary.
To square the records of deportation with the modern demands of humanity it has been necessary further to protect the excluded immigrant in two directions.
Suitable penalties have been provided, in the first place, for the punishment of a steamship master or agent who enforces payment from a rejected alien or his relatives for the cost of the return passage3and in the second place special provision has been made in the cases of debarred immigrants, as well as of aliens returned within the statutory period of three years from the date of landing, whose mental or physical condition is such as to require particular care and attention on the ocean voyage.
Under the existing regulations the steamship company (represented during the voyage by the ship's surgeon) becomes responsible for this special attendance.
The company is required to return a signed report showing the condition and care of the alien during the process of deportation and including a receipt of delivery from the proper relatives or authorities at the point of final destination. It is an axiom of international law that dependents are justly supportable at the expense of the government of which they are legal citizens.
The principle is also fundamental in the law of self-preservation as applied to states or nations. In the recognition of this principle the United States has encountered a problem the pressure of which has been keenly felt in the older and more densely populated communities.
Where the demand for relief has expressed itself in legislation, however, the state has remained true to its traditions by specifically guarding the personal rights of the alien through the incorporation of measures aimed at the avoidance of undue severity in the enforcement of the law. An examination of sections 20 and 21 of the act of I907, and the regulations predicated thereon, will make this fact apparent.
These sections provide for the deportation at any time within three years from the date of landing, at the expense of the steamship company bringing them, of aliens found to be unlawfully in the United States.
Among this class are aliens who become public charges in hospitals or other charitable institutions from causes existing prior to landing, and alien inmates of penal institutions (or otherwise apprehended) who are ascertained to have committed a felony or crime involving moral turpitude prior to entering the United States.
An alien, on the other hand, who becomes a public charge from causes arising subsequent to landing is not subject to expulsion under the immigration laws. Nor is there provision for dea1ing with the cases of alien malefactors for crimes and misdemeanors committed in this country.
But in treating "prior" cases that are subject to deportation the rights of the aliens are guarded in a noteworthy manner. Rules 32 to 35 inclusive, of the Immigration Regulations indicate the procedure to be followed in the case of an alien who becomes a public charge within the statutory period from causes existing prior to landing.
These preliminary requirements embrace
- the submission of an "unequivocal" medical certificate by the institution in which the alien is a public charge;
- the securing of an official verification of landing from the records at the port of the alien's entry;
- a formal application for warrant of arrest from the immigration officer, to whose attention the case has been brought, addressed to the department at Washington; and
- a hearing under the terms of the warrant (if issued) accorded the alien, who is apprised in advance of his right to be represented by counsel so that he may be enabled to show cause, if any, why he should not be deported in conformity to law.
After consideration of all the evidence (which includes a supplementary certificate from the physician in charge indicating whether the condition of the alien is such as to require special care and attention during the ocean voyage) the Secretary of the Department may issue a warrant of deportation if he is satisfied that the alien is here in violation of law. In other cases of aliens who may be found subject to expulsion the preliminary procedure is practically identical.
These aliens, also, pending a decision in their cases, may be released from custody on the giving of a suitable bond. The law, however, has not been satisfied with the adoption of measures reasonably to safeguard the fundamental rights of the immigrant.
Not content with this very creditable achievement it proceeds further and incidentally protects the immigrant's reputation by avoiding the opprobrium which in this country attaches to any form of economic dependence upon the community.
The regulations provide, that is to say, for payment of the cost of care and maintenance in hospital from the date of notification to that of the alien's deportation, out of the Immigrant Fund created by the head-tax collected from. the steamship companies.
The progressive Commonwealth of Massachusetts, indeed, as long ago as I894, entered into, a contract with the federal government under the terms of which payment is made from the Immigrant Fund in cases also of aliens who become public charges within one year of the date of landing from causes arising subsequent thereto.
Such cases, of course, are not subject to deportation. The point to be emphasized, how-ever, is the relief of the community from the burden of supporting those who have no claim of citizenship or "settlement."
Nevertheless, the reputation of our immigrant population has suffered by reason of the acts of a fractional number who constitute what is loosely termed the criminal class. It is an unfortunate fact that the criminal, like the poor, is always with us.
Eventually, doubtless, the one class will disappear with the other since each becomes more anomalous with advancing civilization. Both are largely the result of conditions for which the individual units are not wholly responsible; both deserve sympathetic and humane treatment.
But with the recognition of these common principles there occurs a parting of the ways. In a practical consideration of the problem the delinquent class is to be treated as a positive and the dependent class as a negative menace to society. The difference from the immigration standpoint is sufficiently definitive to be recognized in legislation.
In a consideration of the principles involved it is important justly to determine the status of the convicted offender against society.
Is he entitled to the privileges and courtesies established by society for the benefit of its peaceable and law-abiding members? Does not the offender by virtue of his offense, so to speak, forfeit his rights to such benefits?
The provisions of the Immigration Act of I907 make no specific distinction among the several classes subject to expulsion within three years after landing.
This is the content for Layout P Tag
The alien malefactor is granted the same privileges and immunities as the unfortunate immigrant, who becomes a public charge in hospital from prior causes or who, for any other reason, may be found to be illegally in the United States.
His case is not considered with a view to deportation, in other words, unless
- the existence of a "prior" criminal record is proved and
- an official verification of landing is furnished which shows (or he admits the fact) that he has been in the country for a period of less than three years.
The new law had been in force less than a year, however, when the need of discrimination became manifest. Difficulties peculiar to the disposal of cases of the most undesirable class were frequently encountered.
The task of securing verification of landing was at times insurmountable. The positively undesirable alien was seen to be the one who took the precaution to migrate under an assumed name, to change his name after arrival, or to enter the United States in some other surreptitious manner.
The probability of securing a verification of landing under such conditions was exceedingly remote. It also happened that aliens actually subject to expulsion frequently refused to divulge such facts as would assist in the verification of landing, or deliberately falsified with the same object in view.
To provide for these contingencies, therefore, the Secretary of Commerce and Labor has issued special instructions, incorporated in two departmental circulars, with reference to the more expeditious disposal of cases of alien anarchists and criminals as well as of alien women and girls found to be leading an immoral life.
The secretary specifically directs that "when it is impracticable to ascertain the date of the alien's arrival, by reason of his concealing it or refusing to disclose it, it may be assumed for the purpose of the preliminary proceedings that the date of his landing is within the three years fixed by the statute."
The burden of proving the contrary in such cases is thus cast upon the alien involved. It is probable that this regulation fills the gap in the existing law as well as practicable.
But there has arisen the demand for legislation to provide a distinct and separate basis for treating the cases of alien felons, criminals, and anarchists whose criminal record, belief, or practice is established, recognized, or demonstrated subsequent to landing.
One of the sources of this demand is seen in the attitude of the great body of our immigrant population whose true interests are obviously identical with those of the nation.
From this standpoint it is but a step to a recognition of the fact that their interests may be especially subserved by the provision of more effective means for ridding the country of undesirable aliens the results of whose activities are peculiarly harmful to the fair name of the respectable foreign element.
To retain such aliens in our communities, moreover, is to invite the establishment of a professionally criminal class. Their acquirement of a domicile implies the creation of homes with children who may perpetuate and increase the number of the undesirable type.
If the United States is ever to be seriously afflicted with the disease of anarchism its source may be traced to infection from alien anarchists.
The epidemic will be spread, however, by the offspring of the alien criminal class in this country. These possible eventualities are not pleasant to contemplate. It may be that the existing tendencies are overrated. Nevertheless, there are substantial grounds for advocating more stringent measures in dealing with the alien criminal classes.
It is believed that the immigrant's bill of rights does not wholly accord with the highest interests of the state. The need is felt of a wiser adjustment based upon what is thought to be a clearer perception of individual rights as limited by the prerogatives of organized society.
The sentiment in favor of readjustment, and in the form of protest, has not in the past been voiceless; but it has failed to crystallize in definite and acceptable recommendations.
These recommendations may be broadly comprised in two. The first relates to those classes of aliens who under the present laws are subject to expulsion from causes existing prior to landing; the second is in the nature of a proposal to provide for the expulsion of similar classes of aliens on the basis of causes operating or arising subsequent to arrival.
In the first place, it is suggested that the period during which expulsion may occur be extended from three to five years. Further recommendation is made that the burden of proof in the cases of criminals, anarchists, and immoral women or girls be definitely placed by statute upon the alien malefactor as in the cases of "assisted immigrants" applying for admittance to the United States.
In sec. 2 of the act of I907 it is provided that aliens who are assisted to migrate to the United States shall for that reason "affirmatively and satisfactorily" show that they do not belong to any of the excluded classes.
Similarly, the three classes of aliens above named might be required affirmatively and satisfactorily to show either that they are citizens of the United States or that they have resided in the country for a period of more than five (three) years. In the absence of such showing they would be subject to expulsion.
This, again, would be simply an adaptation of the law which for years has been applied to all Chinese persons in the regular administration of the Chinese Exclusion Acts.
It is provided in sec. 3 of the act of May 5, I892, that "any Chinese person arrested under the provisions of this act shall be adjudged to be unlawfully within the United States unless such person shall establish, by affirmative proof, to the satisfaction of such justice, judge, or commissioner, his lawful right to remain in the United States."
Shall we continue to accord a greater degree of consideration to the alien criminal than to the peaceable and comparatively harmless Chinese? Under the second heading it is recommended that the law of expulsion be extended to cover the cases of criminals and anarchists convicted for crimes committed and anarchism preached or practiced within five (three) years subsequent to landing.
In subsequent as well as in prior cases, of course, it would be incumbent on the alien, desirous of avoiding expulsion, to prove his American citizenship. In either case it would not be difficult to determine the actual citizenship of the alien involved and the country to which the unnaturalized should be returned.
There are obvious difficulties to be surmounted in the framing of a law sufficiently comprehensive to cover this field in such manner as equally to serve the ends of justice and humanity.
It would be of primary importance, for example, by reason of the varying standards in different states, to define the status of a criminal or felon within the meaning of the act. The enforcement of such a law should be guarded by provisions to avert unnecessary hardship in particular cases.
The right to a hearing would be recognized as of course in the same manner as now provided in "prior cases" of aliens arrested under authority of departmental warrant. The final decision would as at present be rendered by the department at Washington after review of all evidence presented.
The issue presented in this proposal for amended legislation is of wider application and larger import than may at first appear it involves, in fact, the entire question of law-enforcement in America.
For it seems by general assent that crime in the United States is on the increase. By the same general assent of those qualified to speak the cause for this increase is a weakening in the enforcement of law.
Another authority deplores our toleration of crime as expressed in a lenient spirit of administration as well as variations in the enforcement of law. This is, however, but one illustration of what has developed into our national failing of excessive individualism.
This again is ultimately responsible for that attitude which is characterized by an extreme regard for individual interests and by comparative indifference toward matters affecting the welfare of society as a whole. But we are on the verge of a digression. Perhaps a digression would be pardonable, however, if it might serve to fix attention upon two points.
The one concerns an amendment to the immigration laws. The other relates to the moral effect upon the enforcement of law in general which will accrue from the strengthening of the laws affecting aliens of the so-called criminal class.
Stockwell, Alcott W., “The Immigrant’s Bill of Rights,” American Journal of Sociology, The University of Chicago Press, Volume 15, Number 1, (July 1909), pp. 21-31
Thus it is provided that if his wife or any of his children, for whom he may thereafter send, is found to be "affected with any contagious disorder," admittance may be secured if it shall be determined that the "disorder is easily curable" or if "they can be permitted to land without danger to other persons."
It may be of interest to know that during the fiscal year I908 (ending June 30, 1908) there were turned back at the ports of arrival about 11,000 aliens, or 1.3 percent of the total number of nearly 800,000 applying for admittance. (See Annual Report of the Commissioner-General of Immigration for the fiscal year ended June 30, I908, pp. 14-16).
The law specifically provides that a debarred alien, or one deported within three years from the date of landing, shall be returned at the expense of the steamship company bringing him to the United States.
Occasional reports of successful attempts on the part of steamship agents or officials to secure reimbursement for the cost of return passage called for the remedy which is now provided.
(1) Aliens who, at the time of entry, belonged to any of the classes excluded from admittance and who should, therefore, have been then debarred;
(2) alien women or girls found to be leading an immoral life; and
(3) aliens found to have entered the country at any other place or in any other manner than as provided by the regulations or designated by the immigration officers.
single exception to this statement relates to alien women or girls found to be leading an immoral life within three years from the date of landing. With this exception the existing laws and regulations do not provide for the deportation of an alien on the basis of a criminal record established after landing.
It must be shown that he has, prior to arrival, "been convicted of or admits having committed a felony or other crime or misdemeanor involving moral turpitude;" and then only within a period of three years from the date of landing is he liable to expulsion.
The steamship companies are assessed a head-tax of $4.00 on every alien admitted to the United States. In view of the fact that this tax is paid indirectly by the immigrants, and included in the cost of their transportation, they appear justly entitled to an emergency claim upon the fund created by their contributions.
This is a right emphasized by the fact that under normal conditions there has remained a considerable surplus in the Immigrant Fund after payment of all expenses incidental to the maintenance of the U. S. Immigration Service.
If this paper had not already exceeded its original limits the present would be an opportune occasion for specifying the classes of aliens to whom this paragraph refers. Mention should be made, at least, of the class known as deserting alien seamen.
There is a constant leakage through the various ports of aliens once rejected, or known to be inadmissible, who secure passage in the guise of seamen and desert their ship on arrival.
The resulting conditions afford one of the most perplexing problems of present-day immigration. It is obviously true that the restrictive features of the law may be largely neutralized by a failure properly to control this leak.
So far it has seemingly been impossible to secure such co-operative action on the part of the interested steamship companies as is essential to anything like adequate control of this evil.
The Canadian immigration law provides for the deportation of any immigrant who "has, within two years of his landing in Canada, become a public charge, or an inmate of a penitentiary, jail, prison, or hospital, or other charitable institution."
No distinction is made between "prior" and "subsequent" cases. (See Law and Regulations of Canada Respecting Immigration June 20, I908, at Ottawa.)