Minotto v. Bradley

252 F. 600 | N.D. Ill. | 1918

CARPENTER, District Judge

(after stating the facts as above). [1,2] I think I do not care to hear from the attorneys for the government in this case. As I stated at the outset, the court is not neutral in this war, and any doubts which it may entertain as to the construction of the statutes and proclamations in, question must be resolved in favor of the presidential warrant. , Of the 11 reasons assigned here why the writ should issue we are concerned only, at least at the outset, with reasons 1 and 2. These two assignments seem to dovetail together, and if, under a construction of the act of Congress, a person comes within the definition of an alien enemy, clearly it was within the power of Congress to deal with such alien as it saw fit; and if the law has prescribed how an alien enemy should be dealt with,, either by executive proclamation or through the various administrative agencies of the government, the petitioner cannot complain. The sole question, as I see it, is: Is the petitioner an alien enemy, as defined by Congress ? If the petitioner is not an alien enemy, the writ in this case must issue.

It has been urged that the German law and the Italian law determine the status of the petitioner. We must construe the act of Congress according as the phrases and words used are construed in this country, according to our laws. We cannot assume that Congress, in legislating, is using words and phrases as they are used in the civil law or the Code Napoléon, as distinguished from the common law and statute law in this cbuntry. Whether, as between Italy and Germany, the petitioner was an Italian or a German, is not important here. The use by Congress of the four words “native, citizen, subject and denizen” indicates that each one of the words was to have a significant and different meaning. Counsel for petitioner admit that the words “subject” and “citizen” are broad enough to include the native German, born of German parents. It would appear, therefore, that the word “native” must have been used to define , something else. As I said, by way of illustration, to Mr. Godman (attorney for the petitioner), the native-born German who moves to Switzerland and becomes naturalized -is neither a subject nor a citizen .of Germany. He is a native, however, of Germany, and would be so considered by any one. Indeed, a person born in Illinois, a citizen of the United States, is none the less a native of Illinois.

Counsel argues that to he “native” one must not only be born in a country, but owe loyalty and allegiance to that country. Allegiance is not born in the child of alien parents. Allegiance may well determine one’s political status. Allegiance by birth and the place of birth may be two entirely different things. The derivation of the word “native” indicates the place of birth; a man’s native town is the town where lie was bom; a man’s native state, be it Württemberg or Massachusetts, is the state where he was bom. He may be a citizen of a confederation of states, but his nativity is determined by the place of his birth. One horn of foreign parents in this country owes perhaps a double allegiance ; to a foreign nation because of his parents, and to this because of his birth. When, however, he becomes of age, he can elect which country shall have his sole allegiance. He is a native at all events of the United States.

This statute must be construed, ■ as I stated during the argument, with the end which Congress had in view. We all appreciate the seriousness of the situation. We realize that a mistake, once made, cannot be remedied. The determination by the President whether the facts justify the internment of the petitioner, provided he is an alien enemy, is not to be investigated by the courts. The courts, in the nature of things, are precluded from discussing those facts. If the President were required to disclose the basis for his warrant, the entire purpose of the statute might be frustrated. The only question to be settled here is whether, under the construction of this statute, the petitioner is a “native, citizen, denizen or subject” of a power with which we are at war. The petitioner could no more cease being a native of the place of his birth than I could cease being a native of the state of Illinois, when you are considering the place of birth.

book at the history of this case. The petitioner was bom in Germany. His mother was born in Germany. His father was born in Austria. The residence of the family was in Germany until within a very short time before the petitioner came to- this country. The record shows that the family of the petitioner have no property in Italy, and have never lived there for any length of time. Under these circumstances it seems to me the court is not stretching the construe • tion of this statute by holding that, this is just the kind of a case that Congress intended to reach when it used the word “native.” All the sympathies of one who was born in Germany, and who has lived there for 22 or 23 years, may he said to be with Germany. Whether they are or not in this case is not important. Suffice it to say that the language used by Congress apparently meets such a case.

Tt might be easy to find in this country thousands of men who were born in Germany and lived there for 25, 30, or 35 years, saturated with German institutions, all of their sympathies might lie with Germany, yet, if the argument for the petitioner is right, the President is helpless, and nothing can be done with them in this- country at this time. If a friendly ally of this country is offended by the action of the President, because some one tracing his lineage back to Italy, but bom in Germany, was apprehended under the President’s warrant, I have no doubt the matter will be brought to the attention of the State Department and diplomatically adjusted.

[3] Inasmuch as Congress has the right at all times to legislate for aliens, clearly it has the right to legislate for alien enemies, and there can be no question here of violating the provisions of our Constitution. The claim that the petitioner is deprived of his liberty without due process of law has no place in the argument in this case. It is like the ordinary case of deportation. Congress confers upon an administrative body certain rights; it is told to do certain things; it determines the facts; it reports that the facts have been so determined. That is all there is to it. The alien has a right to have the courts of this country say whether or not he has been dealt with according to the law, according to the statute enacted by Congress. That having been done, he cannot get any additional rights by claiming that the Constitution, which gives him certain rights in our courts to sue and be sued and to enjoy the protection of our police regulations, gives to our citizens greater rights.

[4] Section 4069, after referring to the presidential proclamation, requires the presentation of a sworn complaint to some court or some judge, and this procedure is made mandatory by this section of the Revised Statutes, which authorizes the several courts of the United States having criminal jurisdiction, after complaint and hearing, to cause alien enemies, to be apprehended, confined, or removed. This section does not in any way limit the powers of the President, but furnishes an additional means to bring about the same result. If the information comes in the first instance to the President or his administrative officers, he may act. Section 4069 permits an information to be filed by any individual who believes that the law has been violated; and, as I have said before, the disclosure, by way of complaint or information, of the facts upon which the alien is apprehended, might in many instances destroy the effectiveness of the law. In this position I am supported by an able decision in a late case by the District Court in the Northern District of Alabama. Ex parte Graber, 247 Fed. 882. It is clear ito me that, having given the President summary power, Congress never intended to take that away by authorizing cómplaints to be filed in the courts.

To summarize: As I view the situation, the sole question to be determined is whether, under section 4067 of the Revised Statutes, the petitioner comes within the description “natives, citizens, denizens or subjects” of a hostile nation. I believe that he does, and that therefore the President had a right to issue the warrant.

The application for the writ of habeas corpus must therefore he denied.

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