CHAPTER V
THE DEPORTATIONS
That imprisonment should continue an hour longer than it ought by law, or that there should be constraint of limb or voice that the law does not allow, is ever a consideration that should call off courts of justice from the ordinary deliberations on matters of property, however great, until this question be determined and this great wrong, if it be one, be redressed.—WILLIAM M. EVARTS, _Argument in the Lemmon Slave Case_.
As long as Congress refuses to follow the disastrous precedent of 1798 and enact a peace-time Sedition Law, the government cannot do much to suppress “evil-thinking” among citizens of the United States. It is not entirely powerless, for violent anarchistic books and periodicals can be excluded from the mails, and the Espionage Act will remain in force as long as we are at war with Germany; in other words, for an indefinite future. As we have seen, Mr. Burleson has not scrupled to use it in his effort to wreck the _New York Call_, and Mr. Palmer, while professing to limit the Act to “acts and utterances which tended to weaken the waging of actual hostilities,”[356] prosecuted and convicted Socialists for requesting an amnesty for political prisoners months after the armistice, and closed up the _Seattle Union-Record_ a year after the last shot was fired. The outcry which these high-handed acts have drawn from even the conservative press has deterred the Attorney General from much independent action, though his agents are frequently reported as co-operating with state officials in raids under local anarchy acts on radical headquarters.
[356] Investigation Activities of the Department of Justice, 6.
In the absence of a new Sedition Law against radical citizens, the government has seized upon the new Alien Law and used it with relentless vigor. The first conspicuous event was the sailing of the transport “Buford” on December 21, 1919, with two hundred and forty-nine Russians. This was followed in January by a carefully prepared round-up in all parts of the country in which over four thousand persons were arrested under deportation charges.
While the right of the Federal Government to punish sedition is open to serious doubt, there can be no question of its affirmative power to exclude aliens from this country or to deport them even though they are admitted. Although no clause in the Constitution expressly gives this power, it has been held by the United States Supreme Court in the Chinese Exclusion Cases to be an incident of the sovereignty and right of self-preservation necessarily conferred by the Constitution upon the government it created.[357]
[357] Nishimura Ekiu _v._ U. S., 142 U. S. 651, 659 (1892); see other cases in 1 Willoughby on the Constitution, 251 ff.
I. _The Statute as to Deportable Radicals_
Various classes of aliens besides the Chinese have long been subject to exclusion and expulsion for such obvious objections as conviction of crime, insanity, pauperism, etc., but it was not until 1903 that the possession or expression of opinions was first made a disqualification. In consequence of the death of President McKinley, Congress refused entry to the United States to anarchists, persons advocating the forcible overthrow of our government or all government, or the assassination of public officials, as well as persons disbelieving in or opposed to all organized government or belonging to organizations teaching such disbelief or opposition.[358] Other types of extreme radicals were added by subsequent legislation.[359] The present statute, enacted toward the close of the war, specifies the following proscribed classes:[360]
Aliens who are anarchists; aliens who believe in or advocate the overthrow by force or violence of the Government of the United States or of all forms of law; aliens who disbelieve in or are opposed to all organized government; aliens who advocate or teach the assassination of public officials; aliens who advocate or teach the unlawful destruction of property; aliens who are members of or affiliated with any organization that entertains a belief in, teaches, or advocates the overthrow by force or violence of the Government of the United States or of all forms of law, or that entertains or teaches disbelief in or opposition to all organized government, or that advocates the duty, necessity, or propriety of the unlawful assaulting or killing of any officer or officers, either of specific individuals or of officers generally, of the Government of the United States or of any other organized government, because of his or their official character, or that advocates or teaches the unlawful destruction of property.
[358] Act, March 3, 1903, e. 1012, §§ 2, 38.
[359] Act, February 20, 1907, c. 1134, §§ 2, 38; Act, February 5, 1917, c. 29, in U. S. Comp. Stat., 1918, §§ 4289¼ b and jj.
[360] Act of October 16, 1918, c. 186; U. S. Comp. Stat., 1919 Supp., § 4289¼ b. This has been amended since the events narrated in this chapter to include aliens convicted under the Espionage Act and other war statutes (Act, May 10, 1920, No. 197), or advocating sabotage, or injury to property, or assaults on officials for any reason; giving or lending money is proof of advocacy or membership (Act, June 5, 1920, No. 262). On the last statute, see John Lord O’Brian, “The Menace of Administrative Law,” address to Maryland Bar Association, June 25, 1920.
Such aliens are not only refused admission and put out if they succeed in getting in, but if they acquire these views or join these associations after their entry into this country, they are to be deported without any time limit, no matter how long before 1918 they came to the United States.
Like the federal “force and violence” bills discussed in the preceding chapter, this statute at first sight seems to apply to really bad men, and to effect nothing but desirable results. Once again, however, we ought to defer judgment until we have examined the actual operation of the statute. The life of a law is not in its words, but in its enforcement. In this case we do not have to rely on inference and argument with respect to the future, for the deportation laws have been in existence long enough to provide us with abundant data from past experience, upon which we may base our decision as to the wisdom and justice of this national course of action.
II. _The Administrative Machinery for Deporting Radicals_
“I’ll be judge, I’ll be jury,” Said cunning old Fury; “I’ll try the whole cause, And condemn you to death.”—_Alice in Wonderland._
The most important question with any legislation which affects human happiness is, what kind of men administer its provisions? Are they an impartial judge and jury, a government official, a secret council, a star chamber? The answer to this question in our problem is the following sentence:[361]
In every case where any person is ordered deported from the United States under the provisions of this Act, or by any law or treaty, the decision of the Secretary of Labor shall be _final_.
[361] U. S. Comp. Stat., 1918, § 4289¼ jj. Italics mine.
No judge or jury passes on the important question whether an alien who has lived here for many years actually holds or has expressed any of the objectionable views specified as grounds for deportation. No judge or jury decides whether he belongs to an objectionable organization or whether it really is objectionable. All these vital issues of fact are determined by the Secretary of Labor, or more often by his subordinates, the immigration officials. And there is for all practical purposes no appeal from those officials to any court, not even to the Supreme Court of the United States. The law takes the position that deportation is not a criminal proceeding and involves no punishment. It is simply an exercise of the right of every sovereign state to determine who shall reside within its borders. Therefore, the foreigner who is expelled without a hearing in court, no matter how long he has lived in the United States, no matter if he must leave a house and other cherished possessions behind him, is not deprived of life, liberty, or property without due process of law.
Such wide powers have not been acquired by the executive branch of our government all at once or without a struggle.[362] The doctrine that administrative decisions on questions of fact may be made conclusive without any judicial review originated in our law in controversies growing out of the distribution of public property. When the government is giving away money which it has acquired under a treaty or is making free grants of public land, it may justly annex whatever conditions it pleases to its gifts and delegate to anybody it selects the power to say how and where those gifts shall go. The recipients of its generosity cannot complain if they must dispense with judicial proceedings and abide by the decision of some administrative body like the Land Department. If they are denied relief by such officials, they lose nothing which they had before.
[362] The leading cases are in 2 Willoughby on the Constitution, c. LXIV. A very valuable article by the Assistant Secretary of Labor, Louis F. Post, is “Administrative Decisions in Connection with Immigration,” 10 _Pol. Sci. Rev._ 251 (1916). This supports my conclusions. The same volume contains several other articles on administrative decisions. See the Bibliography for further references on the Post-office.
Similar powers were soon accorded from obvious necessity to tax officials. The collection of the public revenues would become impossible if every dispute of fact over the value of an imported scarf or the size of an income could be carried by the disgruntled taxpayer into the courts. The complexity of the business and the requirement of speed make it very desirable that administrative officers should execute any valid tax law without interruption so long as no issue of law is involved; on the other hand, their decisions do not affect the liberty of the citizen or interfere with the normal activities of his life.
When the doctrine was extended to exclusion from the mails, its effect became much more serious. The business man who wishes to communicate with prospective buyers and sources of supply is not a recipient of public bounty like the occupant of free land. While he does make use of governmental machinery, he pays for what he gets, and in substance the transaction is like buying municipal water or riding on a national railway. The opportunity to obtain essential services is a condition of earning a livelihood and very possibly of life itself. If a city cuts off a man’s water, he cannot dig a well; if he is kept off the trains, he cannot walk; and in the same way the factory or newspaper which is excluded from the mails is denied any other practicable means of systematic intercourse. The decision virtually ruins its business. All questions of constitutionality aside, Congress ought to consider the advisability of continuing to place such a destructive power in the Postmaster General instead of in an impartial tribunal which would not be both judge and prosecuting attorney. Questions of the weight and contents of letters are administrative like tariff valuations, but the tax department does not furnish an analogy for exclusion orders in the post-office for fraud and other reasons, because such controversies are comparatively few and similar in nature to those which courts are accustomed to settle, besides being far-reaching in their consequences to the community as well as to the prohibited periodical. The cases I have already discussed of exclusion from the mails for alleged indecency or disloyalty show the possibilities of danger when the attainment and dissemination of truth are regulated by the arbitrary will of one man.
All these considerations apply _à fortiori_ to deportation, and especially deportation for opinions. Exclusion of a newly arrived alien by administrative fiat is not a serious hardship, for he simply returns to his old life and takes up the threads where he recently dropped them, but expulsion after long residence is another affair. The matter at stake here is not a gift from the government, or the payment of a tax which leaves substantial property untouched, or even the existence of a business. Liberty itself, long-established associations, the home, are at the mercy of a bureaucracy. Although technically Justice Gray was right in saying that it is not a punishment to deport an alien who has been domiciled here many years, but only a method of removing him to his own country because he has not complied with the conditions for residence imposed by our government,[363] nevertheless, practically it is nothing but a punishment, which, as Justice Field pointed out, is “beyond all reason in its severity.”
[363] Fong Yue Ting _v._ U. S., 149 U. S. 698, 730 (1892).
As to its cruelty nothing can exceed a forcible deportation from a country of one’s residence, and the breaking up of all the relations of friendship, family, and business there contracted. The laborer may be seized at a distance from his home, his family, and his business and taken before the judge [now the immigration inspector] for his condemnation, without permission to visit his home, see his family, or complete any unfinished business.[364]
[364] Dissenting opinion in same case, 759.
This power to tear a man up by the roots is now conferred upon officials of the government, the same officials who prefer charges against him, and is extended from such definite facts as the race and birth of a Chinaman to such vague facts as the opinions and political affiliations of a European. Whatever the constitutional powers of the government, it ought not to deprive a man of liberty and happiness without being sure after a thorough and impartial investigation, such as a judge and jury in open court would afford, that the alien actually falls within a proscribed class. It is popular to defend the present arbitrary methods on the ground that he is only an alien; if he wants to acquire a home here, why does he not become naturalized? He cannot be naturalized for five years, and even after that time his omission ought not to make him an outlaw. He should not be dragooned into citizenship, and incidentally citizens acquired through pressure are not always desirable. A foreigner often has honest and even praiseworthy motives for retaining his old loyalties. He may desire to return to his birthplace in his old age after he has saved a competence by building roads and railways for us, or as in the case of most Russians in our midst before 1917, he may be waiting here with the hope that a tyranny at home will be overthrown. Surely, we do not reproach Americans who spend their lives in England or France without renouncing their allegiance. Why should we regard similar conduct by foreigners in this country as worse than crime, for even criminals would not receive such harsh and summary treatment? We have no business to act and talk as if we owed absolutely nothing to our unnaturalized immigrants. Most of them were brought in at the earnest desire of the very persons and corporations that are now loudly calling for more deportations. For years these foreigners have done our dirty work, and we might at least give them a jury trial before we throw them out neck and heels. Have we no confidence in our own institution? Every alien must expect to be expelled, if he furnishes legal cause, just as he must expect to be punished for an offense, but in each case we should be proud as citizens of a free land to furnish him the best legal machinery we can devise to ascertain whether or not the ground for governmental action really exists.
Let us now look more closely at the method which we actually employ to determine the political and economic views of an alien. Is it equivalent to a jury trial? Even that, I have tried to show, is a hazardous means for the investigation of another man’s words and opinions, and often liable to err, but it is the best practicable means if we are going to inquire into those facts at all. What are the chances of error in the present deportation tribunals?
This can be best determined from a consideration of the actual practice as described by Judge Holt of the United States District Court for Southern New York:[365]
There are a number of officers called inspectors of immigration, connected with the office of the commissioner. Complaint that an alien is in this country in violation of law is usually made by one of these inspectors. The information upon which he bases the charge may have been obtained by himself upon investigation, or may have been furnished to him by others. Frequently such information is furnished by the city police, or by enemies of the person charged, acting through malice or revenge. Affidavits are obtained and are sent by the inspector to the Secretary at Washington, who, if he thinks a proper case is made out, issues a warrant for the arrest of the persons charged. This warrant is usually intrusted for execution to the inspector who has made the charge, and he subsequently usually takes entire charge of the case. After the aliens have been taken to Ellis Island, they are held in seclusion and not permitted to consult counsel until they are first examined by the inspector, under oath, and their answers taken by a stenographer. After this preliminary inquisition has proceeded as far as the inspector wishes, the aliens are then informed that they are entitled to have counsel, and to give any evidence they wish in respect to the charge. Thereafter a further hearing is had before the inspector, at which further evidence may be given by him, and the aliens may appear by counsel and offer evidence in their own behalf. The inspector thereupon reports whether in his opinion guilt has been established, and the evidence taken and the inspector’s finding are sent to the Secretary of Commerce and Labor at Washington, who thereupon makes an order either for the deportation or the release of the aliens. It is, of course, obvious that such a method of procedure disregards almost every fundamental principle established in England and this country for the protection of persons charged with an offense. The person arrested does not necessarily know who instigated the prosecution. He is held in seclusion, and is not permitted to consult counsel until he has been privately examined under oath. The whole proceeding is usually substantially in the control of one of the inspectors, who acts in it as informer, arresting officer, inquisitor, and judge. The Secretary who issues the order of arrest and the order of deportation is an administrative officer who sits hundreds of miles away, and never sees or hears the person proceeded against or the witnesses.
[365] Bosny _v._ Williams, 185 Fed. 598 (1911); see also Immigration Rules of May 1, 1917, Rule 22.
The proceedings are in secret. The public is excluded, so is the press, so are the alien’s wife and children. His inability to speak English and the inspector’s frequent inability to speak anything else make the record unsatisfactory, but the Secretary of Labor sees nothing else. Furthermore, this record is often made by the inspector himself, and he may stop it whenever he wishes, after a good case is made out. Like a policeman, like a district attorney, it is his business to get results. Unless the alien is represented by counsel there is some chance that matter in defense will not get on the record.[366] While he has a right to ask for counsel at such stage in the proceedings as the inspector shall deem proper, being defenseless until then, he is not, like a criminal, entitled to receive counsel at the expense of the government. Furthermore, the alien who does not speak English and is shut up on an island, often ignorant and out of funds, does not readily obtain a lawyer on his own initiative. Thus he may be rigorously cross-examined in the absence of counsel, not only on what he did and said, but on what he thinks. The proceedings are rarely reported in the newspapers, not being open, so that public opinion cannot easily be focussed on an unjust case. Once the alien is deported, all mistakes and wrongs are covered by the intervening ocean.
[366] Low Wah Suey _v._ Backus, 225 U. S. 460 (1912), holds valid the rule denying counsel until after the preliminary hearing.
“If this,” said Justice Brewer,[367] “be not a star chamber proceeding of the most stringent sort, what more is necessary to make it one?”
[367] U. S. _v._ Ju Toy, 198 U. S. 253, 268 (1905).
The alien has two slight possibilities of relief from a wrong decision of the inspector. The review by the Secretary of Labor has already been shown by Judge Holt to be inadequate, because the Secretary never sees the alien or the witnesses, but only the record, which was made up by the very person whose finding is attacked. Moreover, the Secretary of Labor determines and enforces the policy of the government in respect to deportations. Congress should refuse in so serious a matter to make a man final judge in his own cause. Secondly, the alien may in rare instances obtain a writ of _habeas corpus_, which will bring his case before a United States judge. This remedy is very limited, for the conclusions and orders of the immigration officials can be attacked by judicial proceedings only if it is shown “that the proceedings were manifestly unfair, that the action of the executive officers was such as to prevent a fair investigation, or that there was a manifest abuse of the discretion committed to them by the statute;”[368] or if there was an error of law, for instance, in construing the statutory definition of some deportable class. In the absence of fraud, a finding of fact will be reversed only when there is a complete absence of evidence to justify it. So long as there is any evidence at all in its support, no matter how overwhelmingly this is outweighed by the testimony on behalf of the alien, a court cannot interfere.
[368] Low Wah Suey _v._ Backus, _supra_, 468; Gegiow _v._ Uhl, 239 U. S. 3.
The risks of grave injustice under this system are shown by a recent case.[369] A Canadian woman in northern New York, who had always earned her own living and owned several hundred dollars, part of it in local real estate, beside having well-to-do relatives, was ordered to be deported as a person “likely to become a public charge.” The evidence showed that the alien had excited the jealousy of a married woman by receiving from her husband lessons in bicycle riding evenings, and it was suggested that the wife might sue this woman for alienation of his affections, and might in this suit take all her property and leave her without means of support. Also the woman might be prosecuted on a criminal charge, and eventually imprisoned at public expense. On these facts the immigration inspector arrested her and ordered her deportation, and his decision was affirmed by the Secretary of Labor. Obviously the whole case was framed up by a personal enemy, as many cases against radicals may have been framed up during this past winter. In this instance the alien was released by the court, because there was not a single fact to support the finding, but if there had been a scintilla of evidence the judge could have done nothing. Injustice of this kind may easily occur without any corruption on the part of the inspector if he is zealous in enforcing the deportation law and anxious to gratify the eagerness of his superior officers and satisfy the incessant demand of influential newspapers and organizations[370] for a high record of expulsions.
[369] _Ex parte_ Mitchell, 256 Fed. 229 (1919). See Post, Deportations Testimony, 80, 247, for other framed-up cases.
[370] See, for instance, the constant complaints that deportations are few, in the weekly letter issued by the President of the National Founders’ Association, who has suggested that the entire administration of the law be transferred from the Secretary of Labor to the Attorney General. Such a transfer would probably involve sweeping changes in personnel among immigration inspectors.
“In the administration of preventive justice,” wrote James Madison, “the following principles have been held sacred: that some probable ground of suspicion be exhibited before some judicial authority, that it be supported by oath or affirmation; that the party may avoid being thrown into confinement, by finding pledges or sureties for his legal conduct sufficient in the judgment of some judicial authority, that he may have the benefit of a writ of habeas corpus, and thus obtain his release if wrongfully confined; and that he may at any time be discharged from his recognizance, or his confinement, and restored to his former liberty and rights, on the order of the proper judicial authority.”
All these principles he declared to be violated by the Alien Act of 1798.[371] They are violated even more by the Alien Act of 1918. The hated statute of 1798 was a temporary measure called forth by impending war, and provided that the foreigner should first be served with a notice and given time to depart voluntarily. Only if he failed to do so was he arrested. Of this statute Madison said, “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 Act of 1918 is a permanent measure, and provides for immediate arrest, confinement, and expulsion, without notice, or opportunity to close up one’s affairs and embark freely. Even if such procedure has been declared constitutional, it is nevertheless dangerous that it can be inflicted with practically no judicial safeguards, “on mere suspicion, by the single will of an executive magistrate, on persons convicted of no prison offense against the laws of the land.”
[371] Act of June 25, 1798, c. 63; Madison’s Report on the Virginia Resolutions, 4 Ell. Deb. (2 ed.) 581, 582.
III. _The Raids of January, 1920_
You may take my word for it, my dear Viceroy, that if we do not use this harsh weapon with the utmost care and scruple—_always, where the material is dubious, giving the suspected man the benefit of the doubt_—you may depend upon it, I say, that both you and I will be called to severe account, even by the people who are now applauding us (quite rightly) for vigor.—MORLEY, to Lord Minto, on deportation from India.
Such is the machinery which Attorney General Palmer has set in motion to bring thousands of radicals within the provisions of the Alien Act of 1918. Powerful as this machinery is, it is subjected by the law to three limitations in the interest of liberty. (1) The Act provides that arrest must be on a warrant signed by the Secretary of Labor, and the issue of the warrant is carefully regulated by the Immigration Rules.[372] (2) A house or a meeting-hall cannot be searched, and papers or other property cannot be seized, even with a search-warrant, for there is no law which authorizes the issue of a search-warrant in deportation proceedings.[373] (3) The alien must be given a fair administrative trial, in accordance with the Rules. (4) The deportation laws apply only to aliens.
[372] Immigration Rules, 1917, Rule 22, Subd. 3. “_Application for warrant of arrest._ The application must state facts showing prima facie that the alien comes within one or more of the classes subject to deportation after entry, and ... should be accompanied by some substantial supporting evidence.... If based upon statements of persons not sworn officers of the Government ... the application should be accompanied by the affidavit of the person.... Telegraph application may be resorted to only in case of necessity, or when some substantial interest of the Government would be subserved thereby, and must state (a) that the usual written application is being forwarded by mail, and (b) the substance of the facts and proof therein contained....”
[373] The subject of unreasonable searches and seizures will be discussed in the next chapter. There are some statements that the Fourth Amendment does not apply to deportation proceedings, Fong Yue Ting _v._ U. S., 149 U. S. 698, 730 (1893); _Re_ Chin Wah, 182 Fed. 256 (1910), but the contrary has been held in a much cited case, U. S. _v._ Wong Quong Wong, 94 Fed. 832 (1899). See also Moy Wing Sun _v._ Prentis, 234 Fed. 24 (C. C. A. 1916). In Weeks _v._ U. S., 232 U. S. 392 (1914), Day, J., said of the Fourth Amendment: “This protection reaches all alike, whether accused of crime or not”; and in _Ex parte_ Jackson, 96 U. S. 727 (1877), it was applied to administrative opening of the mails. It is inconceivable that the Amendment has no application to non-criminal proceedings though of course the test of what is reasonable is different. _In re_ Pacific Ry. Com’n, 32 Fed. 241, 251 (1887); I. C. C. _v._ Brimson, 154 U. S. 447, 478 (1894).
Moreover, searches and seizures without search-warrant violate the “due process” clause of the Fifth Amendment, except a few special cases like searching the _person_ only of a man arrested for a _crime_. A warrant of arrest does not authorize search. And the Secretary of Labor has no power to issue search-warrants in immigration proceedings under any Act of Congress. Only a warrant issued by a court (under U. S. Comp. Stat., 1918, § 1239; Stern _v._ Remick, 164 Fed. 781) can make legal searches and seizures of the property of an alien not charged with crime, and no statute authorizes immigration officials to obtain a judicial search-warrant in the absence of judicial proceedings. No lawful search can be made in immigration proceedings with or without a search-warrant. Therefore, it seems probable that all the evidence seized in the recent raids cannot be used by the government, Silverthorne Lumber Co. _v._ U. S., 40 Sup. Ct. 182 (1920); and that actions for damages can be brought. Illegal searches and seizures were a ground for the release of an I.W.W. in _Ex parte_ Jackson, 263 Fed. 110 (1920), and of Communists in the Colyer case.
It is also some mitigation of the drastic features of this machinery that it has been entrusted by Congress, not to the Department of Justice which is engaged in the prosecution of crime, but to that Department which was created “to foster, promote, and develop the welfare of the wage earners of the United States,” and is daily concerned with aiding millions of human beings, many of them poor, comparatively helpless, and unacquainted with our language and institutions. The Department of Justice may furnish legal advice or lend its agents for use under the control of the Department of Labor, but it has no more legal right or power to deal with the expulsion of aliens than has the Department of the Interior.
The raids of January, 1920, have been fully described in the opinion of Judge George W. Anderson in the Colyer case. This book will therefore only discuss briefly the extent to which the four principles of personal liberty just stated have been observed and the relative shares which the Departments of Justice and Labor have taken in these raids. My discussion is not based upon the evidence of aliens or journalists, however credible, but upon the statements of sworn officials of the United States, and so far as possible upon the testimony of Attorney General Palmer.[374]
[374] Palmer Deportations Testimony; Post Deportations Testimony; testimony and instructions of government officials in Report upon the Illegal Practices of the United States Department of Justice, by 12 lawyers, Natl. Popular Govt. League, Wash., May, 1920; opinion of Judge G. W. Anderson in Colyer and Katzeff _v._ Skeffington, 265 Fed. 17 (cited hereafter as Colyer opinion). The only sentence based on an unofficial source is that on Detroit conditions.
“Appreciating,” he says, “that the criminal laws of the United States were not adequate to properly handle the radical situation, the Department of Justice held several conferences with the officials of the Department of Labor and came to an agreeable arrangement for the carrying out of the ‘deportation statute.’” Whether the Secretary of Labor, William B. Wilson, and the Assistant Secretary, Louis F. Post, were informed of the “plans laid by the Department of Justice for the apprehension of members of the Communist Party and the Communist Labor Party,” he does not state. The officials with whom he was in close co-operation were the third ranking officer, Mr. J. W. Abercrombie, a member of Mr. Palmer’s Department detailed to serve as solicitor to the Department of Labor and vested with the powers of Acting Secretary when his superiors were absent or otherwise occupied, and Mr. A. Caminetti, the Commissioner General of Immigration, whose relations with Mr. Post have long been strained. Mr. Abercrombie signed 3,000 warrants for the arrest of persons alleged by affidavits of Mr. Palmer’s agents to be members of the two Communist parties. Mr. Caminetti instructed the immigration officials that the aliens covered by the warrants would be arrested simultaneously by the Department of Justice and “held on local charges” until the officials had served the warrants that night or the following day. The agents would assist in serving warrants, perfecting detention arrangements, and providing evidence, but they could not legally conduct the deportation hearings, since this duty was delegated by statute to the immigration inspectors.
The character of the raids is best shown by the Instructions issued by Mr. Palmer’s Bureau of Investigation to his Secret Service men throughout the country. Those in New England are reproduced in Judge Anderson’s opinion. A slightly different form is reprinted on the front page of the _New York Times_, January 3, 1920:
INSTRUCTIONS
Our activities will be directed against the radical organizations, known as the Communist Party of America and the Communist Labor Party of America, also known as Communists.
The strike will be made promptly and simultaneously at 8:30 P.M. in all districts. The meeting places of the Communists in your territory, and the names and addresses of the officers and heads that you are to arrest, are on the attached lists.
You will also arrest all active members where found.
Particular efforts should be made to apprehend all the officers, irrespective of where they may be, and with respect to such officers, their residence should be searched and in every instance all literature, membership cards, records and correspondence are to be taken.
When a citizen is arrested as a communist, he must be present with the officers searching his home at the time of the search.
Meeting rooms should be thoroughly searched.
Locate and obtain the charter. All records, if not found in the meeting rooms, will probably be found in the home of the recording secretary or financial secretary, but in every instance, if possible, records should be found and taken.
All literature, books, papers, pictures on the walls of the meeting places, should be gathered together and tagged with tags which will be supplied you, with the name and address of the person by whom obtained and where obtained.
In searching meeting places, a thorough search should be made and the walls sounded.
It is an order of the Government that violence to those apprehended should be scrupulously avoided.
Immediately upon the apprehension of the alien, or citizen, search him thoroughly. If found in groups in a meeting room, they should be lined up against the wall and searched. Particular efforts should be made to obtain membership cards on the persons who are taken.
Make an absolute search of the individual. No valuables, such as jewelry and monies, to be taken away from those arrested.
After a search has been made of the person arrested you will take all the evidence you have obtained from his person and place it in an envelope, which will be furnished you, placing the name, address, contents of the envelope, by whom taken and where on the outside of the envelope and deliver to me with the alien.
Everybody will remain on duty until relieved, without exception.
Flashlights, string, tags and envelopes should be carried, as per instructions.
In searching rooms of an alien pay particular attention to everything in the room and make a thorough search thereof.
You are also warned to take notice “that no violence is to be used.”
You will communicate with me by telephone from your several districts, the number of the telephone herewith given.
Attached you will find a list of those to be apprehended in your district and you will also apprehend all those found arrested with these names at the time of the arrest, whom you find to be active members of the Communist party.
You are also instructed to use reasonable care and good judgment.
It is too early to write an account of the methods in which Mr. Palmer’s agents carried out his Instructions, but I give the following authenticated facts.
First, aliens and citizens found in a Communist hall on the night of raids, whether they were members of the organization or not, were seized without any warrant whatever. In New England alone a hundred such persons were imprisoned for several days while the officials telegraphed for warrants to cover them, and hundreds more were not released for many hours. The Attorney General testifies on the nation-wide situation:
Where the aliens were assembled at their meeting places and an actual meeting of the Communist Party was in progress the agents of the Department of Justice did take into custody all aliens attending that meeting. It is quite likely that warrants had not been obtained for all such persons, but it is sufficient, it seems to me, that when an alien is apprehended in the commission of the unlawful act that the action of the government officer taking him into custody is warranted. Certainly it could be claimed that if the government officers had visited a meeting place and had permitted aliens found there for whom warrants had not been previously obtained to depart, that they had been derelict in their duty.
The Attorney General also states that when persons applied at the Hartford jail to see their friends who had been arrested at a Communist meeting, the visitors were properly arrested and locked up in the jail; for their coming to inquire was _prima facie_ evidence of affiliation with the Communist Party.[375]
[375] Palmer Deportations Testimony, 69, 76, 115.
Mr. Palmer’s contention is that his agents faced the same situation as a policeman who witnesses a robbery. If he goes to the station house for a warrant the offender will vanish. His agents “did the safe thing” in arresting every alien apparently a Communist. This analogy is clearly unsound. For many crimes a warrant is necessary to arrest, and a deportable alien is not a criminal at all. Neither he nor a citizen can be deprived of his liberty upon considerations of expediency which are not the law of the land. Congress makes that law, and has explicitly required that the alien shall be taken into custody “upon the warrant of the Secretary of Labor.”
Secondly, the prisoners’ property was overhauled and seized without search-warrants. The Chief of the Bureau of Investigation did direct his subordinates to apply to the local authorities for warrants “if you find it is absolutely necessary”; and the Attorney General states, “In every instance where practicable search-warrants were procured from either city authorities or the United States commissioner.” He points to no law authorizing such warrants for papers, and none existed except possibly in states where Communists fall within anti-anarchy acts. Of course, warrants for the seizure of concealed weapons give no right to seize papers. No proof has been given by the government in the Colyer case or elsewhere that search-warrants were obtained in these raids. Mr. Palmer also says, “In no instance can it be shown that any person or place was searched over the objection of the individual.” Naturally an ignorant alien confronted by a posse of detectives at night would hesitate to object to anything. Moreover, Mr. Palmer’s statement that consent was a prerequisite to search is contradicted by the peremptory language of the Instructions and the testimony of his agents. Except in the case of educated English-speaking aliens like the Colyers, there is no evidence that the agents paused before ransacking halls and houses for documentary evidence connected with Communism.
The justification urged is that this valuable evidence of membership would have been destroyed if not seized. Of course, no government has ever made an illegal search unless it expected to find something useful. If searches in deportation proceedings, with or without warrant, are necessary, they must be authorized by Congress and not by the Attorney General.
Thirdly, the hearings by the immigration inspectors were often unfair. This was in large measure due, not to the fault of the inspectors, but to the unprecedented pressure of work and the absence of adequate protection for the rights of the alien. For nearly a year before the raids aliens had been entitled to counsel throughout the deportation hearings. The old procedure described in this chapter, which deprived them of counsel during the important preliminary hearings, while not unconstitutional, was considered so harsh by Secretary Wilson that he abolished it. On December 29, 1919, just four days before the raids and during the Secretary’s illness, the old harsh rule was revived. The Attorney General does not deny that this change was made through the efforts of the Department of Justice, and defends it on the ground that the examination of an alien, when under the advice of counsel, “got us nowhere.” The fact remains that the Secretary of Labor had thought counsel desirable, and it was for him and not the Attorney General to fix the Immigration Rules. As soon as Mr. Wilson and Mr. Abercrombie (who had inadvertently approved the change without appreciating its effect) realized what was happening, they restored the right to counsel, but this was not until January 27, after most of the examinations were completed. Meanwhile, until the hearings were practically closed, the inspectors heard the evidence without the help of counsel for the defense, and on the other hand, for the first time in the experience of immigration officials (at least in New England), an agent of the Department of Justice was present through every hearing. The alien stood alone before an administrative official, confronted by a member of the force of detectives who had sworn out the warrant against him and accomplished his arrest. Thus the government after issuing warrants for the arrest of 3,000 persons suddenly repealed a rule so as to affect those specific persons and deprive them of rights which were guaranteed to them, not indeed by the Constitution, but by the existing law of the land.
The value of the evidence obtained in this way was also materially affected by the treatment which the aliens underwent before and during their trials. The police dragged many men out of their homes in the dead of night. The aliens, none of them under any criminal charge and many of them held without warrants, were taken on trains and through the streets in handcuffs and chains.[376] The prisoners were herded in vastly overcrowded quarters without sufficient clothing and food. For instance, the Mayor of Detroit described as “intolerable in a civilized city” conditions in the police “bull pen,” a room 24 by 30 feet, where over a hundred men were kept for a week. Bail was often fixed at very high amounts; for instance, $10,000, although $500 is the normal sum specified in the Immigration Rules. The men arrested were separated for days from their wives and children, who were left without support by the government. Instead, they were, Mr. Palmer assures us,[377] “looked after by the most prominent charitable organization of their own creed in their locality. It is no part of the Attorney General’s duty to look after the families of the violators of our laws.” The Supreme Court has declared repeatedly that aliens held for expulsion are not criminals.[378] This apology recalls the British General Dyer, the hero of Amritsar, who found shooting into a crowd a still more satisfactory way to get rid of sedition, and remarked that picking up the wounded was no affair of his—that was the business of the hospitals.
[376] Palmer Deportations Testimony, 115. On Detroit, Barkley, _infra_, note 382. On Boston, Colyer opinion.
[377] See his circular letter in 110 _Nation_ 190 (February 14, 1920).
[378] _E.g._, Fong Yue Ting _v._ U. S., 149 U. S. 730 (1893).
The men deported on the “Buford” were torn from their families, who still remain in America.
The public approval of these raids rests on a belief that all the thousands of men arrested were dangerous foreigners who advocated violence. Yet the daily press shows the eventual release for want of evidence of over a third of those seized. And a cursory glance at Mr. Palmer’s Instructions shows that the character of an individual had absolutely nothing whatever to do with his arrest. The most harmless person was to be seized if suspected of membership in the specified political parties. And although there was no law authorizing the arrest of citizens, these instructions direct that all Communists shall be seized, expressly including citizens. Elsewhere it is ordered that if citizens are arrested “through error,” they shall be referred to the local authorities. Thus United States officials would arrest American citizens for prosecution under the harsh state anti-anarchy acts.
That the President of the United States can have authorized these measures seems impossible. It is astonishing that the Attorney General and the Acting Secretary of Labor should have carried through the greatest executive restriction of personal liberty in the history of this country during the President’s illness. Even so the British Cabinet took advantage of the illness of their head, Lord Chatham, to make one of the worst onslaughts on freedom in modern England, the expulsion of Wilkes from the House of Commons in 1768. Macaulay’s Second Essay on Chatham gives the facts.
His colleagues for a time continued to entertain the expectation that his health would soon be restored, and that he would emerge from his retirement. But month followed month, and still he remained in mysterious seclusion.... They at length ceased to hope or to fear anything from him; and, though he was still nominally Prime Minister, took without scruple steps which they knew to be diametrically opposed to all his opinions and feelings.
The sequel to the raids made it plain that hardly a single alien then arrested by the Department of Justice would be deported. In the absence of the President, a sharp conflict between Mr. Palmer and the Department of Labor soon developed. Secretary Wilson released all the aliens imprisoned as members of the Communist Labor Party, holding that organization not to be within the deportation statute. Many of those arrested as members of the Communist Party were released by Assistant Secretary Post because their membership was not proved, and Judge Anderson in the Colyer case decided after an exhaustive survey of the New England raids that (1) many of the aliens who were ordered deported must be discharged for want of a fair trial; (2) even those who had a fair trial must be discharged because the Communist Party does not advocate “force and violence.” If his decision is affirmed by the Supreme Court, nobody can be deported merely because of membership in either party. Consequently every alien seized in the raids must be released except the few who personally advocated the overthrow of the government by violence.
Meanwhile, when Mr. Abercrombie went away, Mr. Post had taken charge of deportation matters. He soon became convinced that many of the recommendations of the immigration inspectors and Mr. Caminetti for the deportation of aliens were not in accordance with the evidence obtained at the hearings, and therefore canceled the warrants of arrest in these cases. This action aroused the indignation of Mr. Palmer and several members of the Immigration Committee of the House of Representatives. A House Resolution looking toward impeachment was referred to the Rules Committee, which heard the testimony of both Mr. Post and Mr. Palmer, but took no action before Congress adjourned.
Mr. Post pointed out that the power to determine whether an alien should be deported was vested by law in the Secretary of Labor and his deputies, and not in the Commissioner General of Immigration. The belief that the aliens discharged were dangerous revolutionists was derived from Mr. Caminetti’s summaries, which were merely advisory, and not from the actual records of the hearings, which were often very different. It was Mr. Post’s duty to decide each case upon the evidence and he had done so. When there was doubt as to the alien’s guilt, the humanity of the situation might properly enter into his decision. Although deportation proceedings are not criminal in nature, he had drawn from the criminal law those principles which recognize the rights of the individual and especially his right to a fair decision whether or not he is guilty. The issue is, not whether those aliens who violate the law shall be deported, for he is deporting them, but whether those who have not violated the law shall be deported.
Mr. Palmer’s position is this. While he has not “the slightest fear that any revolutionary movement can succeed in this country, even to the extent of seriously menacing our institutions,” there was in 1919 a great deal of revolutionary agitation which led to several attacks on federal officials and other violence, and might easily have led to more. The best way to keep order was to attack the spreaders of agitation by means of the deportation statute. The raids caused a marked cessation of revolutionary activities, and the two organizations affected were completely broken by the Department of Justice. Now this same agitation has taken a new lease of life because of the decisions of Secretary Wilson and Mr. Post, which in Mr. Palmer’s opinion are “neither based upon fact nor upon law.”
Upon this position, which I have tried to state with absolute fairness, three comments may be made. First, it raises the fundamental issue discussed in the preceding chapter, how far violent acts can wisely be prevented by the suppression of violent talk. Secondly, the particular method of suppression used by the Attorney General was placed by law under the control of another Department, but the facts of the raids leave no doubt that the deportation machinery during the arrests and the hearings was very substantially directed and operated by the Department of Justice. If the Department of Labor has not properly administered the law, the duty to “care that the laws be faithfully executed” is vested, not in the Attorney General, but in the President. Finally, although it is undoubtedly true that the laws requiring warrants for arrest, forbidding searches, and allowing counsel make deportation more difficult, even in the case of dangerous revolutionists, every rule in the interest of personal liberty necessarily diminishes the efficiency of government. Mr. Palmer adopted the attitude of the men he denounced. Because the law hindered the result he wished to accomplish and thought desirable, he disregarded the law.
IV. _The Arrest of American Citizens for Deportation_
The American people ought to be startled out of their complacent acquiescence in these raids by the confinement of hundreds of their fellow-citizens in jails, without the slightest charge of crime or possibility of such charge under any law of the United States. The government actually contends that it has the right to issue so-called alien warrants, which state no evidence or facts whatever beyond a perfunctory repetition of clauses of the Deportation Act, and yet are the only substitute for an indictment in these proceedings, against any individuals, whether aliens or naturalized citizens or native-born citizens, arresting them whenever and wherever found, and holding them in custody until the question of citizenship is decided by the immigration authorities. It contends that a court has no jurisdiction to release an American citizen who has never been out of his native country from Deer Island or Ellis Island, or any other deportation jail, until the immigration official and the Secretary of Labor on appeal have denied his citizenship. Experience in the Chinese cases shows that these proceedings frequently last for many months. “It follows that on the theory now urged the right of native-born citizens to liberty, perhaps for months, lies at the mercy of the immigration authorities,” and that even after the order of deportation is finally issued against the citizen, he cannot obtain the right from a court to remain in this country unless the proceedings were manifestly unfair or otherwise illegal.[379]
[379] Peter Frank _v._ Henry J. Skeffington, Commissioner, unreported opinion of G. W. Anderson, J., (D. Mass., January 27, 1920).
The case of Peter Frank, an American citizen of Swampscott, Massachusetts, is typical. The warrant of arrest, which he never saw, began, “Whereas from evidence submitted to me, it appears that the alien, Peter Frank, who landed at an unknown port on or about the 1st day of January, 1919,” and went on to charge membership in the stereotyped words of the statute in six kinds of violent organizations, without naming a single one or describing it concretely. All the Boston warrants were in just this form. It was impossible for him to tell from it with what he was really charged. Moreover, no address or other identification of Frank was given, so that there was nothing to show that another man of the same name in another city was not intended. In his petition for _habeas corpus_, which was verified by the evidence, Frank states that he was born in Ohio and was always a citizen; that four days previously immigration officers broke into his house at one o’clock in the morning, arrested him, searched his house and carried off papers, confined him in the Lynn police station and on Deer Island, refused to allow friends or counsel to visit him, and ejected from the immigration office the man who started judicial proceedings in his behalf. Nevertheless, Commissioner Skeffington still contended that Frank was an alien, and that the burden of proof was on him to establish citizenship. The only evidence which was offered to justify his confinement was a questionnaire, on which Frank had answered that he was born in Cincinnati and was not a member of either the Communist or Socialist party or any other organization, but the Shoe Workers’ Union. At the end of this paper the government had stencilled, “I, the under-signed, not a citizen of the United States, on oath depose, etc.,” and Frank had hastily signed without crossing out the “not.” On this flimsy fact the immigration officials kept him five days in jail until against their will he was discharged by Judge George W. Anderson.
The Departments of Justice and Labor were baffled in this case, where there was absolutely no evidence that the prisoner was an alien, but they have not abandoned their main contention that the Secretary of Labor has absolute power, where citizenship turns upon a disputed fact like marriage, parentage, or place of birth, to confine a man who really is a citizen for months and then order him deported on a finding that he is not a citizen. And they are right that Congress has actually conferred this power, and that it makes no difference under the statute if the Secretary of Labor makes a mistake and classifies a man as an alien who is actually a citizen, for “the decision of the Secretary of Labor shall be final.” The citizen is forbidden by Congress to appeal to the courts to correct the mistake of fact and prevent his banishment into places beyond the seas. It is, of course, possible that such a construction of this sentence would be held by the Supreme Court to conflict with the “due process” clause of the Constitution. It would seem that since the Constitution forbids an administrative official to deport any one but an alien without judicial proceedings, the Secretary is simply hauling himself up by his bootstraps when he decides that a citizen is within his jurisdiction and deportable. Nevertheless, the Supreme Court has already allowed him to make almost the same sort of decision under similar statutory language in United States _v._ Ju Toy.[380] That case permitted the Secretary to deport a Mongolian on a finding of fact that he was born in China, regardless of the decision of a court on _habeas corpus_ that he was a native-born American citizen returning from a trip to China. On citizenship as on other questions, the Secretary can be reversed only if there is error of law or an absolute lack of evidence, or if the person to be deported does not receive a fair hearing.[381] It may be that the Ju Toy case will be limited not to apply to deportation after entry, but this cannot be predicted with any confidence. Enough has been said to indicate the possibility, under the present statutory and administrative machinery of deportation, of prolonged vexations for American citizens and even permanent exile.
[380] 198 U. S. 253 (1905).
[381] _E.g._, Chin Yow _v._ U. S., 208 U. S. 8 (1908). The Ju Toy case was held not to apply to deportations, Moy Suey _v._ U. S., 147 Fed. 697 (C. C. A., 1906); U. S. _v._ Low Hong, 261 Fed. 73 (C. C. A., 1919).
It is all very well to say that only Communist citizens run this risk anyway, and that they and Chinese citizens have “no rights that a white man is bound to respect.” The Frank case shows that the government officials were ready enough to confine a citizen who is not a Communist, and he was only one out of many in the recent raids.[382] Moreover, there is nothing in the Deportation Act of 1918 to limit the Secretary to Communists. As I shall show shortly, he may begin to break up other organizations by wholesale deportation of their members, both aliens and citizens whose citizenship is officially denied. Some native-born members of the American Federation of Labor may find a future Secretary of Labor ruling (1) that their association advocates the overthrow of the government by force and violence and (2) that they are aliens. So long as there is any evidence, however much outweighed, to support these two findings, the statute is plain, and allows them no remedy.
[382] F. R. Barkley, “Jailing Radicals in Detroit,” 110 _Nation_ 136 (January 31, 1920); Palmer Deportations Testimony, 109, 111; Colyer opinion.
V. _A Review of the Actual Cases of Radicals Held for Deportation_
The public is therefore in error in assuming that only foreigners have been seized for deportation. It is also wrong in thinking that the aliens who have been arrested are all dangerous characters. Some of those expelled to Europe have undoubtedly been turbulent persons like Emma Goldman, but not all the persons who are held to come within the Deportation Act of 1918 are of the same sort. In order to make it plain just what kind of men the government wants to deport, I shall review the actual decisions relating to three types of radical aliens, Communists, Industrial Workers of the World, and anarchists.
(1) Communists—Guilt by Association and Government Spies
The Communist Labor Party and the Communist Party, which were the chief objective of the recent raids, seceded from the Socialist Party in September, 1919, taking with them several state Socialist organizations, and a very large number of left-wing Socialists.[383] Mr. Gordon Watkins, of the University of Illinois, reports the following estimates of the size of the three parties: Socialist Party after the secession, 39,000; Communist Labor Party, 10,000 to 30,000; Communist Party, 30,000 to 60,000, of whom 25,000 belong to foreign language federations which are predominantly Russian in their constituency. The Secretary of Labor has ruled that all the aliens in the Communist Party are _ipso facto_ liable to deportation under the Act of 1918, as members of or affiliated with an “organization that entertains a belief in, teaches or advocates the overthrow by force or violence of the government of the United States.”[384] The Attorney General’s Instructions evidently take the same view of the Communist Labor Party. Consequently, a card from either party found on any alien furnished the immigration officials with what they called “a perfect case.” Nevertheless, Secretary Wilson took a different view of the Communist Labor Party in the Carl Miller case, and Mr. Post in the Truss case ruled that a card was not conclusive proof of membership. Judge Anderson in the Colyer case went still farther, and held that the Communist Party was not an organization within the Act of 1918.
[383] Gordon S. Watkins, “The Present Status of Socialism in the United States,” 124 _Atlantic Monthly_ 821 (December, 1919).
[384] _In re_ Engelbert Preis, January 24, 1920, House Judiciary Hearings, 17. All the important administrative decisions are reprinted in House Immigration Hearings.
These various decisions raise two questions: (_a_) When does an organization advocate force and violence? (_b_) if it does so, can all its members be justly subjected to painful consequences?
(_a_) The difficulties of the first question have already been pointed out in the preceding chapter, and the Program of the Communist Party affords a practical illustration thereof. Although this Program, which is reprinted in the _American Labor Year-Book_ for 1919–20,[385] plainly intends that the proletariat shall “conquer and destroy the bourgeois parliamentary state” and substitute a very different political and economic system, there is not a word which expressly says that the conquest is to be by force and violence. Mr. Wilson, admitting that such a violent purpose is essential to bring the organization within the scope of the Act, finds it inferentially in various passages, which I give below with the omission of two that parallel the first. In the first place he relies on such statements as, “Participation in parliamentary campaigns, which in the general struggle of the proletariat is of secondary importance, is for the purpose of revolutionary propaganda only.” The context, which he does not quote, qualifies the meaning of “revolutionary”:
Parliamentary representatives of the Communist Party shall not introduce or support reform measures. Parliaments and political democracy shall be utilized to assist in organizing the working class against capitalism and the state. Parliamentary representatives shall consistently expose the oppressive class character of the capitalist state, using the legislative forum to interpret and emphasize the class struggle; they shall make clear how parliamentarism and parliamentary democracy deceive the workers; and they shall analyze the capitalist legislative proposals and reform palliatives as evasions of the issue and as of no fundamental significance to the working class.
[385] Edited by Alexander Trachtenberg, published by Rand School of Social Science, N. Y., pp. 416–419. Also in House Judiciary Hearings, 78–80, which contains many other important documents relating to the two Communist parties.
The vital issue is plainly to determine what is the primary method which is meant to supersede political processes. Is it violence or is there some other alternative? The Program gives the answer, “The Communist Party shall make the great industrial struggle of the working class its major campaigns.” Yet the Secretary decides that this primary method is violence, on the basis of the following extracts from the Party Manifesto:
The conquest of the power of the state is accomplished by the mass power of the proletariat. Political mass strikes are a vital factor in developing this mass power, preparing the working class for the conquest of capitalism. The power of the proletariat lies fundamentally in its control of the industrial process. The mobilizing of this control against capitalism means the initial form of the revolutionary mass action that will conquer the power of the state.
Mass action is industrial in its origin but it acquires political character as it develops fuller forms. Mass action, in the form of general political strikes and demonstrations, unites the energy and forces of the proletariat, brings proletarian mass pressure upon the bourgeois state. The more general and conscious mass action becomes, the more it antagonizes the bourgeois state, the more it becomes political mass action. Mass action is responsive to life itself, the form of aggressive proletarian struggle under imperialism. Out of this struggle develops revolutionary mass action, the means for the proletarian conquest of power.
And then, making this violent purpose still more clear in his eyes, he gives this passage from the Manifesto of the Communist International, which the Communist Party is said to accept as a part of its policy:
The revolutionary era compels the proletariat to make use of the means of battle which will concentrate its entire energies, namely, mass action, with its logical resultant, direct conflict with the governmental machinery in open combat. All other methods, such as revolutionary use of bourgeois parliamentarism, will be of only secondary significance.
From these quotations and numerous other statements which he does not quote (and certainly nothing in the organic documents is more favorable to his view than the extracts reprinted by me):
“It is apparent,” he says, “that the Communist party is not merely a political party seeking the control of affairs of state, but a revolutionary party seeking to conquer and destroy the state in open combat. And the only conclusion is that the Communist Party of America is an organization that believes in, teaches, and advocates the overthrow by force or violence of the government of the United States.”
The last sentence is a complete _non sequitur_. The passages he quotes and the whole Program show that the combat is to be through the proletarian control over industry, which is to be used not merely to secure economic advantages but to put the government in such an uncomfortable position that it will give way to a new kind of government. He lays too much emphasis on the exact wording of the International Manifesto, for although applicants for membership in the Communist Party declare their adherence to the principles and tactics of the Communist International, they are not required to read its manifesto and so cannot be supposed to approve every word. And even if they do, “direct conflict with the governmental machinery in open combat” means lawlessness but not necessarily violent lawlessness. A continuation of the recent coal strike after the injunction would have been just such a conflict without any violence at all. The jargon of Socialism has always been full of such militant phraseology, which does not imply anything more than political and economic effort. “Revolutionary class struggle,” “mass power,” “mass action,” mean big strikes for political ends. Such strikes like any strike might lead to violence, but Secretary Wilson as a former labor leader can hardly hold that advocacy of a strike is _per se_ advocacy of force and violence. Objectionable as the purposes of the Communist Party are to all who have faith in our system of representative government and the possibility of progress through public opinion and the ballot, those purposes are not within the Deportation Act of 1918, for they are altogether compatible with the absence of force and violence. The general strike may be more effective against a government than an armed rebellion, and Congress can if it wants make advocacy of the general strike a ground for deportation, but it is not such a ground now. Secretary Wilson is wrong in assuming that non-political methods of overturning a government are necessarily criminal and violent methods. Francis Place, the tailor, overturned the government of England in 1832 and precipitated a revolution which the vote of the electorate had failed to accomplish, simply by posting placards urging the people to start a run on the banks. There is a middle method of political change between the ballot and the bomb, namely economic pressure, and that, however unwise or injurious in nature, is the method of the Communist Party. It advocates the overthrow of our government, but not by force or violence.
Undoubtedly there are men in the Communist Party who would use force to get rid of their opponents. Every party has such men. Billy Sunday preaches, “If I had my way with these ornery wild-eyed Socialists and I.W.W.’s, I would stand them up before a firing squad and save space on our ships.” Guy Empey tells his hearers to get rid of Bolsheviks; “the necessary implements can be obtained at any hardware store.” The Republican Secretary of the State of Massachusetts would shoot Bolshevists and traitors every morning, at least in war time, and the next morning he would have a trial to see if they were guilty. But such men do not turn their party into a party of force and violence.
There is no sure test of what a party does advocate. The utterances of a leader may represent only his personal view and be rejected by his associates. Even platforms have never been taken very seriously in any party. The law has got itself into a bad mess by starting investigations into the opinions of associations, the vaguest kind of inquiry imaginable. And certainly the evidence adduced by Secretary Wilson, even if it can be construed as an encouragement of violence, is much more capable of a peaceful interpretation. Until he is sure that the violent construction is actually put upon the words by the members of the party, he is not justified in adopting an interpretation which makes possible the expulsion from their homes of thousands of workingmen in the United States.
The Communist Labor Party is also outside the scope of the Deportation Act. Its Program has the same talk about “the conquest of political power by the workers,” “the class struggle,” “action of the masses.” It favors “the establishment of the Dictatorship of the Proletariat” by making “the great industrial battle its major campaigns, to show the value of the strike as a political weapon.”[386] It is a revolutionary working-class party but there is nothing in its Platform or Program which advocates force or violence. As for the ruling of Assistant Attorney General Garvan that the two Communist parties violate the Espionage Act because they are “pledged to fight any suggestion of military action by America against the Soviet Russians,”[387] the widest construction of that convenient statute has never before extended it to prohibit opposition to war before war is declared.
[386] _Ibid._, pp. 414–416. See Secretary Wilson’s opinion in favor of Communist Labor Party, Post Deportations Testimony, 152. Contrast convictions of members under anti-anarchy acts of states.
[387] _New York Times_, January 4, 1920.
(_b_) Even if Secretary Wilson is right in his ruling that some of the tenets of the Communist Party advocate force and violence, it does not necessarily follow that all its members are supporters of violence. It is true that persons joining the Communist Party sign a statement of allegiance to its platform, but this ought not to be taken as conclusive that they favor violence, especially as there is no express mention of violence in that document and the party had not then been declared illegal. The facts show that many persons are affiliated with this party for various innocent reasons. Some believe in peaceful industrial action as the only cure for social ills, some join because their friends do, others without being members of the party frequent its headquarters (and so may be held to be affiliated) to take lessons in physical geography or because the Communist restaurant has better meals at cheap prices than any other place. In Massachusetts, many persons are members of the Communist Party because they belonged to the local state Socialist organization when it seceded last September and turned Communist, and their year’s Socialist membership had not yet expired. Many such men fall within Secretary Wilson’s ruling just as much as the real revolutionists, very few of whom seem to have been caught. When hundreds were lined up together after the recent raids, the _Times_ reported, “They were a tame, unterroristic looking crowd, and their appearance bore out the statements of operatives that not a man had tried to put up a fight.”[388]
[388] Quoted in 21 _New Republic_ 232 (January 21, 1920).
The idea that guilt is not necessarily personal, but can result from mere association is absolutely abhorrent to every American tradition or conception of criminal justice.[389] Therein it differs from the law of Germany. In 1878, after two attempts had been made upon the Emperor’s life, Bismarck secured a law “against the generally dangerous efforts of Social Democracy,” a party which then advocated the doctrine that the existing capitalistic society must be overthrown by forcible revolution. This law made men offenders, not for anything they individually did or said, but simply by reason of their membership in an association which aimed at the overthrow of the existing order of government or society. The party thrived and prospered under this law as never before. When it was repealed, the party became conservative.[390] Similar legislative measures were adopted in England during the hysteria of the French Revolution against associations which advocated universal manhood suffrage, although as May says, the few men who were really guilty of sedition and treason would have met with no sympathy among a loyal people. A statute was passed suppressing by name the “Societies of United Englishmen, United Scotchmen, United Britons, United Irishmen, and The London Corresponding Society” and enacting that any person who thereafter became or continued a member of any such society should be deemed guilty of an unlawful combination and confederacy and upon conviction might be transported for seven years.[391] Other societies were broken up by a general statute punishing any one concerned in taking oaths to engage in any “seditious purpose.” This statute was used nearly forty years later to punish men for membership in a labor union.[392]
[389] Alfred Bettman in Hearings before the Committee on Rules, 66th Cong., 2d Sess., on H. Res. 438, Wash., 1920, pp. 125–128.
[390] Ernst Freund, _The Police Power_, 513 note; 2 Stephen’s _History of the Criminal Law_ 395. Alfred Bettman, _supra_.
[391] 39 Geo. III, c. 79 (1799).
[392] 37 Geo. III, c. 123 (1797); 20 _Columbia L. Rev._ 234 note (February, 1920).
May’s description of England in 1792 applies to this country in 1920, and should stand as a warning.[393]
In ordinary times the insignificance of these societies would have caused contempt, rather than alarm; but as clubs and demagogues originally not very formidable had obtained a terrible ascendancy in France, they aroused apprehensions out of proportion to their real danger.... The Government gave too ready a credence to the reports of their agents; and invested the doings of a small knot of democrats, chiefly workingmen, with the dignity of a widespread conspiracy to overturn the constitution. Ruling over a free State, they learned to treat the people in the spirit of tyrants. Instead of relying upon the sober judgment of the country, they appealed to its fears, and in repressing seditious practices they were prepared to sacrifice liberty of opinion. Their policy, dictated by the circumstances of a time of strange and untried danger, was approved by the prevailing sentiment of their contemporaries, but has not been justified in an age of greater freedom by the maturer judgment of posterity.
[393] 2 May’s _Constitutional History of England_, 32, 33. Aliens are specifically discussed on 156 ff.
Ireland is another country where the policy of guilt by association has been a favorite with the government. In 1825 the Catholic Association, which advocated the admission of Roman Catholics to full civil and political rights, was suppressed by an Act of Parliament declaring unlawful every society acting for more than fourteen days for the purpose of procuring the redress of grievances in church or state, and making membership thereafter a misdemeanor punishable by fine and imprisonment in the discretion of the court. The Catholic Association was dissolved, and its former members started a new society every fourteen days to do exactly the same things. When the statute expired after three years, the Catholic Association immediately revived. In 1829 it was suppressed again by name, but it had accomplished its object of securing Catholic Emancipation.[394] In 1881 the English Cabinet repeated this policy with what Morley, who ought to know, calls “about the most egregious failure in the whole history of exceptional law.” Parnell’s Land League was suppressed by proclamation under authority of a Coercion Act, and hundreds of suspects, including Parnell himself, were arrested and imprisoned, “but the only effect of these measures was largely to increase agrarian crime in Ireland and to strengthen the malign influence of the instigators to violence who had to some real extent been held in check by the imprisoned leaders.”[395]
[394] 6 Geo. IV, c. 4 (1825); 10 Geo. IV, c. 1 (1829); 2 May, _ibid._, 88–93.
[395] 44 Vic., c. 4 (1881); 3 May, _ibid._, 160; Morley’s _Recollections_, II, 818.
It is this policy of guilt by association which our government now proposes to imitate. The American policy has always been different. A man has not been visited with legal penalties because he had bad companions. He has not been imprisoned except for acts which he himself did or injurious words which he himself uttered, and he has not been expelled unless after investigation of his individual qualities he was found undesirable. The deportation clauses against radical organizations were practically a dead letter until these raids. Even with treason, the most dangerous crime of all, he is not guilty just because he associates with treasonable persons. Chief Justice Marshall held in the case of Aaron Burr that he must himself commit overt acts of treason.[396] Unless a man is a member of a conspiracy he is not responsible for the acts of others unless they are authorized by him. And no one contends that the two Communist parties are conspiracies. The Supreme Court has just handed down a decision squarely in point.[397] It held unanimously that the president and treasurer of the Philadelphia _Tageblatt_ could not lawfully be convicted for items in its columns violating the Espionage Act, which were put in by their associates on the newspaper, since they were in no way responsible for the publications complained of. The same principle applies to the rank and file of the Communist parties.
[396] Beveridge’s _Marshall_, III, c. 9.
[397] Schaefer _v._ U. S., 251 U. S. 468; see p. 94, _supra_.
The deportation statutes introduce the European principle that a man is known by the company he keeps and that guilt is not personal. This is an unprecedented and obnoxious feature of the various syndicalist statutes mentioned in the last chapter, and it is equally obnoxious as a ground for expulsion, which, as I have shown, is in all its practical effects equivalent to punishment of the severest kind. These membership clauses in the deportation statutes have never been construed by the Supreme Court, but even if it be held that the power of Congress over aliens is so extensive that expulsion for mere membership in an association without themselves expressing or even holding prohibited opinions is “due process of law” and a permissible abridgment of freedom of speech, nevertheless the clauses are drastic and dangerous.
It would be like some of the obnoxious statutes just mentioned for the Secretary of Labor to rule that the Communist Party is an outlawed organization, and that all aliens who _thereafter_ join it or neglect to withdraw are liable to deportation. It is even harsher to expel them because they were members before the ruling. How many can fairly be supposed to have known until then that that party was within the statute? Its violent character was not so obvious that they can fairly be considered to have assumed the risk of such a severe penalty. To impose banishment on them without warning recalls Bentham’s complaint that the criminal judges of his time gave laws to the poor just as a man makes laws for his dog. “When your dog does anything you want to break him of, you wait until he does it and then you beat him for it. That is the way you make laws for your dog,” and that is the way we are making laws for our radical aliens.
The proposition that men who are personally dangerous must be vigorously dealt with is in no way affected by what I have said about these membership clauses of the deportation statute. Those clauses give administrative officials the right to expel men who are in themselves harmless, and if the free speech and due process clauses do not invalidate them, they are none the less unjust. Burke said in his Speech on the Conciliation of a certain rebellious people, when his opponents wanted a bill “with teeth in it,” that you cannot draw an indictment against a whole nation. You cannot draw it against a whole party either. Those Republicans and Democrats who shout for the deportation or imprisonment of the entire Communist Party because of certain clauses in its platform might recover their sense of humor long enough to ask themselves if they ever endorsed every plank in their respective party platforms. Even Congressmen, party leaders, and Presidents have been known to disregard some such principles. Let us deport men for the injuries they do or, if we must, for what they say, but stop condemning them for the grandiose phrases of a party creed.
People seem to think high-handed acts a matter of indifference, so long as the men who suffer are Communists, like the Spanish woman who did not object to watching autos-da-fé because only heretics were burned.[398] But if the Secretary of Labor has final power to decide whether any organization advocates force or violence, if this is an administrative question of fact like an alien’s having tuberculosis, then there is no logical reason for him to stop with the Communist parties. As we shall see in the next chapter, a very energetic attempt has been made to put the Socialist Party in the same category. The Non-Partisan League, the American Labor Party, the Committee of 48, have all been called forcible revolutionists. The Western Federation of Miners has been accused of violence. Nor is the American Federation of Labor exempt from such charges. The recent steel strike was frequently denounced as revolutionary, and there is no doubt that the Bridge and Structural Iron Workers have blown up many bridges and buildings.[399] Suppose not only that the law punishes individual members of these organizations who commit or even talk violence, but that a future Secretary of Labor shares the opinions of those who believe that the organizations themselves advocate force and violence. Deportations will follow for the purpose of driving these organizations out of existence.
[398] Ernst Freund in 21 _New Republic_ 266 (January 28, 1920).
[399] Hoxie, _Trade-unionism in the United States_, passim.
And even if the wording of the present constitutions of these various bodies makes such a possibility very remote, some future change of language may easily bring any of them within the scope of the statute. Here a very sinister opportunity is afforded to the enemies of any radical organization, whether they be the Federal Government or a state government, unscrupulous employers or a detective agency proceeding on its own initiative, a conservative union or a rival political party. Spies can be sent into the councils of the organization in question, for the purpose of inducing the insertion of violent planks in its constitution. Once this is accomplished, all alien members of the organization are presented with the alternatives of immediate resignation or deportation; to say nothing of the fact that citizen members may face prosecution under a state syndicalism statute or perhaps under a future federal sedition statute like section 10 of the Graham Bill. These clauses in deportation and syndicalist statutes making mere membership a basis for severe penalties render it so easy to destroy any organization in the way I have suggested that the temptation may not be resisted in times of excitement. Indeed, it is believed by Judge Anderson that some of the extreme planks in the Communist Party Platform, to which Secretary Wilson points, may possibly have been inserted in this very manner.
The very existence of spies, whether or not they would thus influence statements of radical principles, is one of the worst evils of sedition legislation, whether directed toward prosecution or deportation. Espionage goes with an Espionage Act. Informers have been the inseparable accompaniment of government action against the expression of opinion since the delators of Tiberius.[400] The state cannot reach such crimes without them. It needs no great force of eavesdroppers to report murders and robberies. The overt act marks the offense, and if a detective is required at all it is either to chase the criminal, to ward off bomb-plots and assassinations, or to discover who is committing especially ingenious thefts. But if political utterances are made criminal, secret police are indispensable to discover that the crime has been committed at all. That was why the original loose Anti-Anarchy Bill introduced in the Massachusetts legislature in 1919 was accompanied by a bill to establish a secret police.[401] The Attorney General was empowered to “make inquiry into any matters concerning the public safety,” and for that purpose to employ “officers, agents, or deputies,” whose names were known only to him and the governor, and to have at his disposal a fund from which disbursements could be made without audit. When the Anti-Anarchy Bill was made less sweeping, the Secret Police Bill became unnecessary and was dropped.
[400] Merivale, _The Romans under the Empire_, c. 44.
[401] Mass. Senate Bill No. 184 (January, 1919). This did not become law.
We do not need to go out of Anglo-Saxon countries to Russia for examples of this system in actual operation. The accounts of the historic English sedition trials are full of the employment of spies at the meetings of political societies. And the spy often passes over an almost imperceptible boundary into the _agent provocateur_, who instigates the utterances he reports, and then into the fabricator, who invents them. There was plenty of this in England, and the same kind of liar, Captain Zaneth of the North West Mounted Police, has just been exposed in Canada after convicting one of the Winnipeg strike leaders on a charge of seditious conspiracy.[402] This dirty business is the price a government must pay for the suppression of political crime. Are we willing to pay that price?
[402] J. A. Stevenson, “A Set-back for Reaction in Canada,” 110 _Nation_ 292 (March 6, 1920).
“The freedom of a country,” writes the historian already quoted, “may be measured by its immunity from this baleful agency.”[403] We have never had it before in the United States, but there is disquieting evidence that this inevitable machinery of sedition-hunters is already at work. At the end of the instructions which W. J. Flynn, Director of the Bureau of Investigation in the Department of Justice, issued, on August 12, 1919, “to all special agents and employees,” ordering an investigation of the promotion of sedition and revolution, which should be particularly directed to aliens with a view of obtaining deportation cases, we find this enigmatic passage:[404]
Special agents will constantly keep in mind the necessity of preserving the cover of our confidential informants, and in no case shall they rely upon the testimony of such cover informants during deportation proceedings.
[403] 2 May, _ibid._, 150.
[404] Investigation Activities of the Department of Justice, 34.
Who these “cover informants” were is disclosed by the _New York Times_[405] in its account of the raids on the Communists four months later:
For months Department of Justice men, dropping all other work, had concentrated on the Reds. Agents quietly infiltrated into the radical ranks, slipped casually into centers of agitation, and went to work, sometimes as cooks in remote mining colonies, sometimes as miners, again as steel workers, and, where the opportunity presented itself, as “agitators” of the wildest type. Although careful not to inspire, suggest, or aid the advancement of overt acts or propaganda, several of the agents, “under cover” men, managed to rise in the radical movement, and become, in at least one instance, the recognized leader of a district.
[405] January 3, 1920. For additional evidence as to the activities of these informants, see the testimony of Captain Swinburne Hale in Hearings before the Committee on Rules, _supra_, note 389; Colyer opinion; Palmer Deportations Testimony, 48, 87 ff., 199; Report upon Illegal Practices.
The Attorney General and his subordinates testify that the Department of Justice employs men who are or have recently been spies in outlawed organizations. One special agent, though never an under-cover informant in the Department, was a spy for the Lusk Committee a short time before as recording secretary of the Buffalo Communist local. The letter of instructions about the raids from Chief Burke of the Bureau of Investigation to his Boston agent, December 27, 1919, whatever its precise meaning, shows that United States employees were active and influential members of both Communist parties:
If possible, you should arrange with your under-cover informants to have meetings of the Communist Party and the Communist Labor Party held on the night set.... This, of course, would facilitate the making of the arrests.
It is to be hoped that these men have been as “careful” as the _Times_ reporter says, and that Mr. Palmer is right in denying his employment of _agents provocateurs_, but we would do well to recall one more warning from May:[406]
The relations between the Government and its informers are of extreme delicacy. Not to profit by timely information were a crime; but to retain in Government pay, and to reward spies and informers, who consort with conspirators as their sworn accomplices, and encourage while they betray them in their crimes, is a practice for which no plea can be offered. No Government, indeed, can be supposed to have expressly instructed its spies to instigate the perpetration of crime; but to be unsuspected, every spy must be zealous in the cause which he pretends to have espoused; and his zeal in a criminal enterprise is a direct encouragement of crime. So odious is the character of a spy, that his ignominy is shared by his employers, against whom public feeling has never failed to pronounce itself, in proportion to the infamy of the agent, and the complicity of those whom he served.
[406] 2 May, _ibid._, 151–2. See Graham Wallas, _Francis Place_, N. Y., 1919, 121.
When the litigation growing out of the Communist raids is over, and we can count how many men out of the many thousands arrested are actually deported, and determine how many of those deported are really bad, then only will it be possible to say whether it was worth while instead of deporting the conspicuously dangerous men to go through all this enormous expense, all this spying, arresting, and herding, to save the country from men who in ordinary peace-time conditions were advocating a revolution at some distant and indefinite day through legislative and other propaganda and occasional future unspecified and improbable general strikes.
(2) Industrial Workers of the World
The Industrial Workers of the World have been classified differently from the two Communist parties. Both the Department of Justice and the Secretary of Labor have taken the position, contrary to some state decisions,[407] that the organization does not advocate the unlawful destruction of property. “Its constitution and by-laws have been adroitly drawn so as to avoid the possibility of construing it as teaching either anarchy or sabotage.” Consequently, mere membership is not a ground for deportation.[408] It is evident that local immigration inspectors do not all agree with this view of the organization, for Secretary Wilson has released some aliens who after being carried from Oregon to Ellis Island, declared they joined the I.W.W. without realizing its principles.[409] The leaders, organizers, and distributers of literature, at any rate, are getting deported, and this action has been sustained by United States courts in Washington and Oregon on the ground that there is some evidence to justify the administrative order of expulsion.[410] One judge has cancelled the naturalization of an I.W.W. organizer, who at the time he became a citizen approved of sabotage and indorsed the preamble and constitution of the organization.[411] The judge said that since the I.W.W. is “opposed to all forms of government, advocates lawlessness, and constructs its own morals, which are not in accord with those of well-ordered society,” but are “adapted by design to the demoralization and degradation thereof,” its adherents must _ipso facto_ be guilty of fraud in declaring that they are attached to the principles of the United States constitution. Therefore, they cannot become citizens, and if they do, the right can be taken away and deportation follows. The Districts Courts go further than Secretary Wilson, since they denounce the organization itself and regard all members of the I.W.W. who understand and approve its tenets as barred from citizenship and within the Deportation Act, whether or not they have personally advocated violence. There is, of course, no question that many alien officers and members have preached sabotage, and are deportable.
[407] State _v._ Moilen, 140 Minn. 122 (1918); and the injunction mentioned on p. 193, _supra_; also State _v._ Lowery, 104 Wash. 520 (1918), which refused to admit in evidence the Report of the President’s Mediation Commission.
[408] Investigation Activities, etc., 33; letter of W. B. Wilson to John E. Milholland, 110 _Nation_ 327 (March 13, 1920).
[409] _New York Times_, March 18, 1919. See adverse editorial, March 19. Officials of the Department of Justice are reported, _ibid._, February 11, as asserting that mere membership is enough, so that “it will be impossible for that organization to continue in existence.” The Ellis Island I.W.W.’s would have been discharged by a judge if they had not been released.—Post Deportations Testimony, 207.
[410] _Ex parte_ Bernat and Dixon, 255 Fed. 429 (1918); Guiney _v._ Bonham, 261 Fed. 582 (C. C. A., 1919); and see administrative decisions in “The Anarchist Deportations,” 21 _New Republic_ 96 (December 21, 1919); and Charles Recht, _American Deportation and Exclusion Laws_. _Cf._ U. S. _ex rel._ Grau _v._ Uhl, 262 Fed. 532 (1919).
[411] U. S. _v._ Swelgin, 254 Fed. 884 (1918).
It is unnecessary to repeat here what was said in the preceding chapter about the wisdom of coercion against the propagandist activities of the I.W.W., as distinct from the commission of sabotage and other violence, which of course must be vigorously punished. I will only add that the Department of Labor should be sure that the organization against which it employs this great power is fundamentally revolutionary and not at bottom a labor union. The use of deportation to break up unions, little as I sympathize with them, seems to me to be wholly wrong. It is said, for instance, that when the Chinese workers in New York chop suey restaurants organized a union and struck on New Year’s Eve, 1918, the leaders were arrested for deportation.[412] The facts of another case are given in the decision of a United States judge, who discharged the alien held for deportation:
From August, 1918, to February, 1919, the Butte Union of the Industrial Workers of the World was dissatisfied with working places, conditions, and wages in the mining industry, and to remedy them was discussing ways and means, including strike if necessary. In consequence, its hall and orderly meetings were several times raided and mobbed by employers’ agents, and federal agents and soldiers duly officered, acting by federal authority and without warrant or process. The union members, men and women, many of them citizens, limited themselves to oral protests, though in the circumstances the inalienable right and law of self-defense justified resistance to the last dread extremity. There was no disorder save that of the raiders. These, mainly uniformed and armed, overawed, intimidated, and forcibly entered, broke, and destroyed property, searched persons, effects, and papers, arrested persons, seized papers and documents, cursed, insulted, beat, dispersed, and bayoneted union members by order of the commanding officer. They likewise entered petitioner’s adjacent living apartment, insulted his wife, searched his person and effects, and seized his papers and documents, and in general, in a populous and orderly city, perpetrated a reign of terror, violence, and crime against citizen and alien alike, and whose only offense seems to have been peaceable insistence upon and exercise of a clear legal right.
[412] _American Labor Year-Book_, 1919–20, p. 113. _Ex parte_ Jackson, 263 Fed. 110 (1920), Bourquin, J. The whole decision should be read. The attitude of the government toward labor unions outside the A. F. of L. is shown by the Attorney General’s statement about the Amalgamated Clothing Workers, Palmer Deportations Testimony, 196, 197.
This opens up dangerous possibilities of influence not only by employers but also by rival conservative unions to secure the annihilation of radical labor organizations through wholesale arrests and expulsions. I believe that the eventual disappearance of the I.W.W. is highly desirable, but Congress ought to consider carefully in the light of the English experience with the Irish Land League whether the deportation of all intelligent alien members is the best method to obtain that result.
The government ought not to be satisfied to base such drastic action merely on an examination of the literature of the organization by men who are unfamiliar with its economic background. An alternative plan for dealing with the very difficult problem of this organization would be a vigorous suppression and punishment by state law of acts of sabotage, while the Federal Government before arresting or deporting any more members should ascertain the possibility of curing the causes of the revolutionary character of the I.W.W., such as the permanent presence of a large body of migratory labor, homeless, wifeless, jobless. The Department of Labor has at hand for purposes of consultation men who have studied the I.W.W. carefully and men who aroused the enthusiastic efforts of its members in war industries.[413] Such a conference might evolve a new and more satisfactory policy.
[413] See Bibliography, on I.W.W.
For example, deportation does not seem quite the right way to handle the case of John Meehan,[414] who was arrested in Everett, Washington, in May, 1917, for violation of a local anti-billboard law, and then ordered deported as an I.W.W. to England, from which he came twenty-four years ago. After eighteen months of incarceration he was landed, hatless, penniless, and with insufficient clothing, in England, where he has neither kith nor kin.
[414] Charles Recht (counsel for Meehan), _American Deportation and Exclusion Laws_, p. 9.
(3) Anarchists
Anarchists have long been subject to exclusion and expulsion. If the term be taken in the popular sense of supporters of bomb-throwing and assassination generally, the statute is undoubtedly constitutional, and has been so held by the Supreme Court[415] in sustaining the exclusion of an Englishman named Turner. The case possesses some literary interest, for one of his counsel was Edgar Lee Masters, whose acid-bitten portraits of life at Spoon River have indicated possibilities of improvement in American life.
[415] Turner _v._ Williams, 194 U. S. 279 (1904).
It is well known, however, that anarchism has no necessary connection with violence. It really means the belief which opposes every kind of forcible government and favors the abolition of all coercion over the individual by the community.[416] Philosophical anarchists argue that most governmental action is required because of inequalities in property, and point to many activities of life where these inequalities do not operate and coercion has been found unnecessary. For example, if a number of friends are cruising on a sloop, they require no policeman to keep order or compel each person to do his allotted task. Mutual agreement and the desire to achieve praise and avoid blame from one’s companions furnish sufficient incentive to right action. The anarchist looks forward to the time when life will be such a perpetual holiday, and hopes to convert all men to the same faith in human nature. While waiting and working for the millennium, he will, with rare exceptions, think it consistent with his theories to render obedience to existing laws, until they shall disappear forever. Kropotkin and Tolstoi in Russia, Herbert Spencer and Bertrand Russell in England, have at least been strongly influenced by this view that all government is evil. It is obvious that such men and many others have no desire to employ force to end force, but seek to attain their ideal system gradually and peacefully through discussion and education.
[416] Bertrand Russell, _Proposed Roads to Freedom_, 32.
These philosophical anarchists caused much perplexity in the early days in this country, even to such a strong champion of soul-liberty as Roger Williams, who argued for their suppression in his celebrated letter of 1655 to the people of Providence:[417]
There goes many a ship to sea, with many hundred souls in one ship, whose weal and woe is common, and is a true picture of a commonwealth or a human combination or society. It hath fallen out sometimes that both Papists and Protestants, Jews and Turks, may be embarked in one ship; upon which supposal I affirm, that all the liberty of conscience that ever I pleaded for, turns upon these two hinges—that none of the Papists, Protestants, Jews, or Turks, be forced to come to the ship’s prayers or worship, nor compelled from their own particular prayers or worship, if they practise any. I further add, that I never denied that, notwithstanding this liberty, the commander of this ship ought to command the ship’s course, yea, and also command that justice, peace, and sobriety, be kept and practised, both among the seamen and all the passengers. If any of the seamen refuse to perform their services or passengers to pay their freight; if any refuse to help, in person or purse, toward the common charges or defense; if any refuse to obey the common laws and orders of the ship, concerning their common peace or preservation; if any shall mutiny and rise up against their commanders and officers; if any should preach or write that there ought to be no commanders or officers, because all are equal in Christ, therefore no masters nor officers, no laws nor orders, nor corrections, nor punishments;—I say, I never denied, but in such cases, whatever is pretended, the commander or commanders may judge, resist, compel, and punish such transgressors, according to their deserts and merits. This, if seriously and honestly minded, may, if it so please the Father of Lights, let in some light to such as willingly shut not their eyes.
[417] Moses Coit Tyler, _History of American Literature_, II, 261.
However, when government became stronger in this country and stood ready to punish any of these men who actually disobeyed the law, it was realized that they presented no danger merely because of their thought and teachings. Many Quakers in the Colonies refused to participate in government because of the New Testament teachings of non-resistance. A similar philosophy was held by many great Americans in the 1840’s when as Emerson said, with a twinkle in his eye, every reading man went round with a draft of a new community in his waistcoat pocket. The famous settlements at Brook Farm and Fruitlands were peopled by just such persons.
The Deportation Act of 1918 undoubtedly applies to these peaceful disbelievers in organized government as well as to the bombers, and so did all the statutes since 1903, but the power of Congress to bar them out has never been upheld by the Supreme Court. In the decision just mentioned, which involved only the exclusion of a violent anarchist, Chief Justice Fuller said nothing at all about expulsion, but suggested in passing that Congress could exclude even innocent anarchists if it was of the 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.” On the other hand, Justice Brewer, in concurring, expressly refused to determine the right of an alien, if only 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.”[418]
[418] 194 U. S. 294, 296; italics mine.
The public does not realize that it is men of this type as well as violent anarchists whom the government is now sending out of the country after long residence, during which they have necessarily remained aliens since the law forbids their naturalization. Take, for instance, the case of Frank R. Lopez, a Spaniard of the Ferrer school. This man has been in the United States seventeen years, belongs to the A. F. of L., is married, has a son born in this country, owns his own home, and has always been a law-abiding member of society. Yet he has been ordered deported to Spain because he held and expounded, in speech and writing, views which Judge Rogers of the Circuit Court of Appeals in New York expressly stated to be only philosophical anarchism and in no sense advocacy of a resort to force and revolution. Judge Rogers upheld the order of deportation because of the following testimony of Lopez[419] before the immigration inspector:
Q. Do you believe in or advocate the overthrow by violence or force of the government of the United States? A. No, sir.
Q. Any other government, Spanish, or Italian, or Mexican? A. No, sir; our ideals are founded on education.
Q. What are your ideals? A. Free thinking.
Q. Don’t you believe in the power of authority? A. What do you mean?
Q. Organized government. Don’t you think, if the President gives an order when Congress empowers him, that it should be obeyed? A. Yes; the orders should be obeyed.
Q. Do you believe in the propriety of assassination of public officials of the United States or any other government? A. No, sir; not only of officials, but of nobody. Everybody has a right to live.
Q. Do you believe in anarchy? A. What do you mean by anarchy?
Q. Well, it would be anarchy to fight against the laws of the United States, tear down buildings, blow them up. A. Anything else? I believe in anarchy, but it is not the way you explain it, or the way newspapers say anarchy is. Anarchy, the way newspapers explain it, assassinating women and children, dropping bombs, or anything like that, I don’t believe in that. But I believe in teaching, educating, and telling the people to better their conditions. If you mean that, I am proud of being an anarchist. I am against killing and against destruction. We are to construct.
Q. How are you going to proceed to do this? A. We are not going to force our ideals on anybody’s mind. We have conferences, we have lectures. The doors are open, and everybody is welcome.
Q. You try to get people through advertising means? A. Yes, for educational purposes.
Q. For the educational purposes of teaching them anarchy? A. To teach them anarchy the way we understand it, but not the way you understand it; the way many writers understand it.
Q. What writers? A. Tolstoi, Marx, Ferrer, Zola, Kropotkin, and many others.
Q. If you are ordered deported, do you want to be separated from your wife and boy, or would you desire to have them go with you to Spain? A. It’s up to the government; I think it is an injustice; I have done nothing wrong; I call it an injustice; if a man is going to be punished for his thoughts and ideas, it is an injustice.
[419] The testimony and opinion are from Lopez _v._ Howe, 259 Fed. 401 (C. C. A., 1919). See the opinion of Knox, J., below, quoted in 260 Fed. 485. The facts about the life of Lopez are stated by his counsel, Charles Recht, with additional extracts from his testimony, in _American Deportation and Exclusion Laws_, Boston, 1919, p. 9. The testimony is also reprinted in 21 _New Republic_ 98 (December 24, 1919). See the letter in 21 _New Republic_ 356 (February 18, 1920), which finds the case so “incredible” that it wrongfully accuses the magazine of withholding utterances by Lopez of an inflammatory nature. The decision in the Federal Reporter expressly rests on philosophical anarchism and denies any advocacy of violence.
Unless the Supreme Court declares this construction of the statute unconstitutional, Lopez will be deported to Spain. The expulsion of other men with just the same views has been sustained.[420] Judge Rogers emphasizes the point that Lopez had never become naturalized, overlooking the fact that if he had become a citizen our courts would take his naturalization papers away from him on the ground that they were obtained by fraud,[421] although it seems just as consistent for a man who believes that all government should eventually be abolished to swear allegiance honestly to the government of the United States as it is for a man to render obedience to a statute which he thinks ought to be repealed. Certainly the conduct and testimony of Lopez show that he would have made as good a citizen as most native-born Americans. Judge Rogers also says that Lopez is deported, not because he entertained these thoughts and ideas, but because he sought to instil them into the minds of others. However this may be in his case, the statute expressly authorizes men to be thrown out of this country after long residence for ideas which they have never expressed to a single person until they were subjected to an inquisition by the immigration inspector. Such a law suppresses not only freedom of speech but freedom of thought. The following entry added by the Inspector to the testimony of Louis Gyori, who has been ordered deported because he expects a revolution which will compel every one to work but will only come at some uncertain time when the majority want it, is very significant:[422]
Very careful and steady questioning was necessary to bring out the alien’s beliefs, political and industrial.
[420] _Ex parte_ Pettine, 259 Fed. 733 (1919); see also 21 _New Republic_ 98.
[421] U. S. _v._ Stuppiello, 260 Fed. 483 (1919).
[422] “The Anarchist Deportations,” 21 _New Republic_ 98 (December 24, 1919).
VI. _The Deportations and the Bill of Rights_
Having thus shown that the deportation statute has been put into force against men who are in no way advocates of violence, I will now return to the general question of the power of Congress to make laws excluding or expelling men from this country because of mere membership in societies which it considers objectionable or because of the holding or expression of peaceful ideas which it regards as having a bad political tendency. The constitutionality of such statutes is defended on two grounds.
First, it is said that the power of Congress to decide what aliens shall be admitted or shall remain in this country is unrestricted by the Constitution. One judge calls this power “well-nigh plenary in its absolutism.”[423] Chief Justice Fuller suggests that if Congress can shut out all aliens, it can therefore shut out any group of aliens it pleases. Such a contention seems to me unsound. One might as well argue that because a Republican Congress can refuse to naturalize all aliens, therefore it can refuse to naturalize only those who express the intention of casting a Democratic vote at the next election. The First and Fifth Amendments in the Bill of Rights limit all the powers of Congress, including the power over the exclusion and expulsion of aliens.
[423] _Ex parte_ Pettine, _supra_.
Aliens are “persons” within the Fifth Amendment, whom Congress cannot deprive of liberty and property except “by due process of law,” that is, by methods which are appropriate to the emergency. It cannot turn the aliens whom it wishes to deport loose in an open boat on the Atlantic, or carry them across the border into Mexico and leave them wandering the desert. No one would consider this a reasonable way of returning them to their own country. Moreover, the method of classifying aliens for deportation is as important as the manner of expulsion. If Congress has unlimited power to remove alien members of any group it chooses, all Roman Catholics, all Jews, all Russians, any class that happens to be unpopular at the moment, can be ousted no matter how long they have been in the United States. It has been repeatedly decided by the Supreme Court that the mere existence of a legislative power such as taxation, does not (under the “due process” clause) involve the right to exercise that power in a discriminatory manner against a group such as all red-headed men, who are selected arbitrarily without reasonable relation to the facts and the needs of society.[424] The discretion of Congress to determine the basis of classification must be very wide, but it is not unbounded. In particular, classification of the objects of any recognized Congressional power must not be used solely for the purpose of accomplishing a result prohibited by the First Amendment. Congress can tax all incomes, but an income tax of 50 per cent on Socialist college professors alone would be a convenient but unconstitutional way to suppress freedom of speech. Furthermore, it seems probable that the “due process” clause renders the power of Congress over the expulsion of aliens much narrower than the power to refuse them admission, because the deprivation of liberty and property is so much greater after an alien has once been admitted and become settled in this country. Many more individual interests claim protection. Congress could undoubtedly refuse admission to aliens with diseased eyes and could probably expel such aliens after several years’ residence; possibly it could exclude aliens with blue eyes; but a law ordering all aliens with blue eyes to leave the country no matter how long they had been here would be clearly a violation of the Fifth Amendment.
[424] Gulf, etc., Ry. _v._ Ellis, 165 U. S. 150, 165 (1897); Connolly _v._ Union Sewer Pipe Co., 184 U. S. 540, 560 (1902).
The power over aliens must also be subject to the First Amendment, for that declares that “Congress shall make no law abridging the freedom of speech or of the press,” and a deportation statute is a “law.” Nevertheless, that Amendment does not mean to deny the government the power of self-preservation. Some opinions may be so dangerous to the nation that men holding them may be kept out or even expelled. In other words, we must determine the limits of freedom of speech in relation to deportation according to the principles laid down in the first chapter.
In this connection, I must consider the second argument in favor of the validity of these clauses against radicals in the Deportation Act. It is urged by Chief Justice Fuller in the Turner case[425] that the statute has nothing to do with freedom of speech.
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 worshiping 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.
[425] See note 415.
This argument seems to me very questionable because it regards freedom of speech as purely the individual interest of the alien. We have seen in the first chapter that it is also a social interest of the community as a whole. Although the alien who is barred out may not be entitled to any claim under our Bill of Rights, persons already here are seriously affected if they are denied the privilege of listening to, and associating with a foreign thinker. Furthermore, the progress of the country as a whole may be gravely retarded. Truth is truth, whether it comes from a citizen or an alien, and the refusal to admit a wise foreigner, especially if there is a postal censorship on books, may simply result in our remaining ignorant. Massachusetts in the middle of the eighteenth century would have been unwilling to allow Bishop Berkeley to settle in her midst, but if Rhode Island had also refused to admit him, it would have impoverished American thought. Refusal to admit Bernard Shaw or Bertrand Russell in 1920 would operate in the same way. Roman Catholic citizens of the United States would surely be aggrieved by a law barring all future immigrants of that faith. Therefore, freedom of speech is necessarily affected by the exclusion of aliens for their opinions, and such exclusion is unconstitutional unless the social interest in the attainment of truth is outweighed in the balance by the other interests involved. The First Amendment does not read, “No citizen shall be deprived of freedom of speech.” It prohibits all laws “abridging the freedom of speech or of the press.”
What has been said applies still more forcibly to the expulsion of long-established aliens for their views and utterances. This has always been a favorite method of dealing with the heterodox. Almost all the wholesale deportations of history, just like Mr. Palmer’s January raid, have been an effort to overcome “evil thinking.” Spain expelled the Moors; England in the reign of Edward III banished fifteen thousand Jews; and Louis XIV in 1685 drove out the Huguenots from France. In 1891 President Harrison called the attention of Congress to the action of Russia, a friendly nation, in banishing thousands of Jews.[426] Although there are many precedents in history for the wholesale expulsion of Communists, they are not precedents which we should be proud to follow.
[426] Moore’s _Digest of International Law_, VI, 358; this has reference to Russian subjects. On American Jews expelled from Russia, see _ibid._, IV, 111 ff.
Therefore, the deportations may infringe the national policy expressed by the First Amendment, even if they do not transcend the extreme limits of constitutional power. It seems to me more profitable to leave the question of constitutionality to future judicial discussion, and simply outline the conflicting factors which determine the wisdom of the deportation of radical aliens to-day.
In favor of deportation are, first, the desire of society for order, which was considered in the last chapter, and besides this, the interest of the nation in keeping its population free from elements which are considered undesirable additions to our present and future stock. The same social need found expression in the Chinese Exclusion Acts. It is this second factor which makes the power of Congress over aliens so wide. The war power should, I have endeavored to show, be used against utterances only to ward off dangerous acts, but this power over immigration is primarily directed to dangerous persons. It is concerned less with what men do than with what they are—whether they are diseased, crippled, of psychopathic inferiority, liable to become a public charge. The danger-test of the Schenck case still holds good, but in a new form. Congress may wisely act now, although there is “no clear and present danger” of violence, for “the substantive evil which Congress has the right to prevent” is in this problem the presence of persons who are so undesirable that they ought to be denied or deprived of an American domicile.
Undoubtedly, men may be undesirable and dangerous persons because of their ideas as well as physical and mental derangements. On the other hand, the need of society for truth and progress must come into play, and in determining who are undesirable we must be ever on our guard against applying the test of conjectural and remote tendencies. It is not at all the same provable question of fact as heart trouble or insanity.[427] For instance, much of the reasoning in the philosophical anarchist cases, which stigmatize the doctrine as “inimical to civilization,” is purely speculative, and smacks of the eighteenth century sedition trials. And the organization clauses, in expelling men who are not undesirable themselves just because they have undesirable associates, carries the logic of national integrity one step beyond the standard of individual suitability for residence in America.
[427] See American School of Magnetic Healing _v._ McAnnulty, 187 U. S. 94 (1902), and the quotation from Justice Brandeis in the Pierce case, p. 105, _supra_.
The record of philosophical anarchists shows that they are no more prone to disorder than any religious sect, and whatever we may think of their ultimate faith, they may be of great benefit in society, both for their constructive schemes of voluntary organization and for their pointed criticisms of the evils of existing governments. Let me offset the reasoning of Roger Williams with another ship-parable (ships being rather appropriate in this chapter):[428]
“A sailor related to me,” writes Benjamin Constant, “that he was once on board a vessel with a passenger who had frequently made the same voyage. This passenger pointed out to the captain a rock hidden beneath the waves, but the captain would not listen to him. On his insisting upon it, the captain had him thrown into the sea. This energetic measure put an end to all remonstrances, and nothing could be more touching than the unanimity that reigned on board, until, suddenly, the vessel touched the reef, and was wrecked. They had drowned the giver of the warning, but the reef remained.”
[428] _Letters on England_, Louis Blanc, London, 1866, I, 438.
Another reason against wholesale deportation for ideas is that we have a national reputation to live up to, which we should hesitate to sacrifice. We have drawn millions of workers to our soil, not merely by the material magnet of high wages, but by the great hope of freedom from all the tyranny of European empires. After priding ourselves for a century on being an asylum for the oppressed of all nations, we ought not suddenly to jump to the position that we are only an asylum for men who are no more radical than ourselves. Suppose monarchical England had taken such a position toward the Republican Mazzini or the anarchist Kropotkin. Sweden, next door to Bolshevik Russia, allows and even encourages by law extensive freedom of speech. Switzerland, with her small population, has harbored even bomb-throwers and Nicolai Lenine with perfect safety. But the United States with one hundred million inhabitants, four thousand miles away from the scenes of revolution, is urged to be afraid of a few thousand men like Lopez and the advocates of “mass action.” We shall soon be in the shameful position of seeing political offenders from this country demanding asylum in the very lands from which men once fled to be free to think and talk on our shores.
The international consequences of the deportations are very serious. Not only are we erecting a Chinese wall to keep out ideas, but we are helping to increase the very unrest in Europe that we fear. Every one of sense, no matter what his opinion of the present government of Russia, believes that the restoration of order in that country is essential to the provisioning and the peace of Europe. We began this pacification of Russia by sending in Admiral Kolchak. We end by sending in Emma Goldman. The harm that she did during her thirty-four years in the United States was nothing beside the unrest and international irritation she is creating in Russia, where she has already organized the “Friends of American Freedom.” A nuisance here, she is a heroine over there and one more element of instability in the Russian situation. Look at Larkin, whom the British deported from Ireland, where they could keep an eye on him. No single man has done more to stir up bad feeling against Great Britain in this country. What sort of an international house-cleaning are we going to have if each country grabs up turbulent persons and dumps them across the border upon its neighbor’s land? I have no sympathy whatever with these extremists, but as a matter of expediency they may be doing far less harm when they talk to foreigners who are in this country under American inspiration than when they are sent with bitterness in their hearts to spread hatred against us in the very countries to which we must look for future immigrants.
Other international difficulties are bound to arise. If we make peace with the Soviet Government, how can we declare any one who endorses its political and economic theories an outlaw? Already the Secretary of Labor is proposing to decide whether that government advocates revolution so that he can deport Mr. Martens,[429] a job which seems more within the duties of the Secretary of State. Soon some one will suggest that the attempted assassination of Viscount French and the death of numerous English officials in Ireland is some evidence that Sinn Fein is an organization which “advocates the duty, necessity, or propriety of the unlawful killing of officers of an organized government because of their official character,” and Secretary Wilson will have to pass on the deportation of President De Valera.
[429] “Martens and Our Foreign Policy,” Lincoln Colcord, 110 _Nation_ 324 (March 13, 1920). Palmer Deportations Testimony, 180, gives the case for deportation.
Think of the example which these recent raids have set to less orderly nations, this resorting to methods which we have repeatedly declared to be a violation of international law, when used against Americans abroad.[430] We can no longer take that position. If Mexico should conclude that certain Americans there had advocated a revolution in that country by force and violence, or a “clean-up” by the United States (by force), then it could seize our fellow-citizens from their beds at midnight, throw them into Black Holes like the Detroit bull-pen, separate them from their families, let their business go to pieces, turn their wives and children over to the local charities, and ship them in an army transport to New Orleans, knowing that every act would be supported by precedents of what has been done in this country last winter to the citizens of a government that was too weak to hit back.
[430] _Cf._ with the January, 1920, raids, the following facts from Moore’s _Digest of International Law_, IV, 108: “In May, 1898, F. Scandella, a citizen of the United States, engaged in the cattle and transportation business at Ciudad Bolivar, Venezuela, was suddenly arrested while walking in the streets of that city, and was thrown into prison, where he was denied communication with his family and friends. Next day he was taken under guard to a steamer, and was sent to the British island of Trinidad. His wife and five young children were left without funds; his cattle and mules were stolen; and his house, which was about three miles from town, was sacked. The authorities of the State of Bolivar alleged as the cause of his seizure and expulsion ‘frequent denunciations’ and ‘well-founded suspicions’ that he was ‘plotting secretly against public order.’ The United States minister interposed in the case, presenting testimonials as to Mr. Scandella’s character and standing; and the President of the Republic intimated a desire to settle the case outside of diplomatic channels. Scandella was permitted to return to Venezuela; and early in July, 1898, the case was understood to have been adjusted on the basis of $1,600 in cash, American gold, and a promise of reimbursement for property taken or destroyed.” Other examples of arbitrary expulsion are the Hollander case in Guatemala, _ibid._, 102; and the Bluefields cases in Nicaragua, _ibid._, 99. Several arbitrations on expulsion are contained in Moore’s _Digest of International Arbitrations_, IV, c. LX.
Finally, in deciding whether radical deportations should be carried out further, we ought to consider two classes of people in this country—first, ourselves; secondly, all the aliens.
That deportations are very popular with American citizens is undeniable, far more so than the proposed federal sedition bills. How can we account for this astonishing desire to reverse our national policy? Besides the nervous effect of the war, the shock of the Russian Revolution, the unpreparedness for wide intellectual divergencies, of which I shall speak more fully in the next chapter, there is, I suspect, another element. Genuinely grateful as we all are in our thinking moments to our immigrant population, most of us have a hidden emotion which comes to the surface in a time of excitement, the wish that we did not have in our midst these foreigners who are so different from ourselves. The basis of dislike is normally unlikeness.[431] It is just the same feeling that led Dr. Johnson to say after the experience of a lifetime that most foreigners were fools. We are going through the old Know Nothing affair over again.
[431] “The Nervousness of the Jew,” Dr. A. Myerson, 4 _Mental Hygiene_ 65 (January, 1920); Bagehot elaborates the point in his essay on “The Metaphysical Basis of Toleration.”
This instinct is normally controlled by a recognition of what immigration has done for the United States. It is not true that the aliens owe us everything and we owe them nothing. They have no vote, but they have hands and muscles. They have come here at our request, often at our earnest solicitation, to dig our sewers, cart our garbage, weave our cloth, build our roads and railways. And they have minds like ourselves. Absence of citizenship means the loss of the vote, but does it give us the moral right after a man is admitted to prescribe what he shall think, under penalty of banishment from his new home, and perhaps forcible return to the secret police from whom he fled? Doubtless, a policy of hands-off will result in the presence of a few dangerous agitators springing up in the great army of workers, but we should be willing to take the foam with the beer. This is not the first time that restless spirits, many of whom had been actually engaged in the labor wars of Europe, have carried the instinct of industrial strife and violence with them to their new country.[432] We have lived through it until this year in confident serenity. We have believed that the unrest brought from the other side of the ocean would eventually be dissipated by contact with American life. The radical shows the same change under a fostering environment as the Jew, who is rapidly becoming assimilated to his neighbors. “What persecution could not do through the centuries, toleration does in a generation.”[433] The Bolshevist peasant in Russia, having acquired a bit of land, is already angering his rulers by his conservatism. In the same way a savings bank account, a steady job, and plenty of good-humored toleration and friendly help and encouragement, will bring into harmony with our ideals all but a few heated theorists who have been in our midst all through the war and ought not in peace to be such a menace to our national safety that we cannot counteract them by sound reasoning. Secretary Wilson would, if he had his own way, adopt this very method:[434]
I look upon any alien who comes to this country and advocates the use of force for the overthrow of our Government as being in exactly the same position as an invading enemy, and that it is no undue hardship to send him back to the country whence he came. Nevertheless, I would not deal with the subject matter in that way. In dealing with it during the period of the war the policy of the Department of Labor was to send high-class, intelligent working men, who had lived the lives and spoke the language of the workers themselves, into the places where working men congregate, carrying a counter-propaganda puncturing the fallacy of the philosophy of force as applied to democratic institutions. We believed we had successfully met the situation until Congress in its wisdom curtailed the appropriation that made it possible for us to carry on the work we had been doing.
[432] See account of the Molly Maguires in Rhodes, _History of the United States_, VIII.
[433] Myerson, _op. cit._
[434] Letter to John E. Milholland, reprinted in 110 _Nation_ 326 (March 13, 1920).
VII. _Suggested Changes in Our Deportation Policy_
As an alternative to our present policy of deportations I would suggest a continuance of Secretary Wilson’s plan for the first step. The last few years have taught us that the melting-pot will not entirely take care of itself. Just as the merits of free trade in goods are lessened if the normal processes of competition are checked by monopolies and dumping, so free trade in ideas requires that the barriers to the interchange of argument presented by illiteracy and foreign languages shall somehow be broken down.
Secondly, Congress should put into force the following recommendation from the Secretary of Labor:[435]
If lawfully admitted aliens are to be deported from the United States for any cause, in my judgment the deportation should be the result of judicial proceedings in the courts rather than through administrative action.
[435] _Ibid._
The Assistant Secretary made the same recommendation four years ago:[436]
In most cases administrative decisions must in the very nature of administration be made by subordinates; in all instances they must be made along hard and fast lines according to unelastic legislation designed to promote a governmental policy. Determinations regarding private rights by such decisions are mere incidents of administration.... Nothing in my official experience in the Department of Labor has impressed me more deeply than the conviction that fundamental personal rights should be more scrupulously guarded in immigration cases than is possible through administrative decisions made in the course of executive routine.
[436] “Administrative Decisions in Connection with Immigration,” Louis F. Post, 10 _Am. Pol. Sci. Rev._ 260, 261 (1916). See Post Deportations Testimony, 239, 246 ff. An alternative method would be an independent administrative tribunal of three experts to sit in a purely judicial capacity upon all deportation cases, like the Commissioner of Patents in his field.
Thirdly, a conference might be held to include immigration officials, members of Congress, men who have come into contact with radical aliens on the President’s Mediation Commission and in the conduct of war industries, and scholars like Brissenden who have studied revolutionary organizations. This conference should outline for the guidance of Congress a program for our future deportation policy. It would seem desirable to limit deportable aliens to men who are themselves personally objectionable on account of the advocacy of force.
Finally, the Secretary of Labor or the President should be given discretion whether or not to expel an alien who is within a deportable class. At the present time Assistant Secretary Post[437] shows that deportation must be automatic, no matter how cruel or unwise it may be. An imprisoned criminal may be pardoned by the President, but not even he can prevent an alien who comes under the statutes from being sent overseas.
[437] _Ibid._
I make these suggestions as an American, believing that we must depend on a large immigrant population for many years to come and that we all desire them to be loyal members of the community, devoted to our institutions whether or not they decide to abandon their allegiance to their old land. Men cannot be forced to love this country. They will love it rather because it does not employ force except against obviously wrongful overt acts. They will love it as the home of wise tolerance, of confidence in its own strength and freedom. Undoubtedly there is much discontent in certain groups of aliens at the present time. It has been accentuated by the excitement of the Russian Revolution, which must eventually subside. We are not likely to decrease this discontent by dragging men away from their families and either shipping them abroad or releasing them after many bitter days in prison. The relatives and friends of those deported will not have any increased love for our government. The raids have become a text for more agitators, who speak to men and women who now have a real reason for wanting to get rid of the existing form of government. It is not the soap-box orators, but Mr. Palmer with his horde of spies and midnight housebreakers, that have brought our government into hatred and contempt. Yet it is not too late to abandon this great error, recompensing the injured and adopting a fresh policy for the future. Let us limit punishment to overt acts. Let us trust an Anglo-Saxon jury trial to safeguard us even from aliens. Let us rely on tried American methods, and not upon the secret and summary processes of the last few months.