[ G.R. No.

13862, April 16, 1918 ]

IN RE R. MCCULLOCH DICK.[1]

DECISION

CARSON, J.:
The petitioner, R. McCulloch Dick, prays for his discharge from detention by the acting chief of police of the city
of Manila, who took him in custody under authority of an executive order, a copy of which is set out in the body of
this opinion.
A writ of habeas corpus was issued by one of the members of this court upon the following1 representations of the
petitioner:
"(1) That he is unlawfully restrained of his liberty.
"(2) That he is so unlawfully restrained of his liberty by Anton Hohmann, acting chief of police of the city of
Manila.
"(3) That the place where he is so restrained is the city of Manila, Philippine Islands.
"(4) That the cause of his detention is an order issued by the Governor-General of the Philippine Islands in
accordance with the provisions of section 69 of the Administrative Code (Act No. 2711), a true copy of such order
being hereunto annexed, marked Exhibit A and made a part of this petition, as well as the proceedings on which
said order of deportation was based and issued, a copy whereof is also attached, marked Exhibit B and made a part
of this petition.
"(5) That the said detention and restraint are illegal and that the illegality thereof consists in this, to wit:
"That the Governor-General of the Philippine Islands had no authority to issue such order of deportation, and that
such order of deportation is in violation of the Constitution, treaties, and laws of the United States, and of the Law
of Nations, in force in the Philippine Islands.
"(6) That the petitioner is not restrained of his liberty nor is he in the custody of an officer under process issued by
a court or magistrate, or by virtue of a judgment or order of a court of record."
The executive order referred to in the petition is couched in the following terms:
"Office of the Governor-General of the
Philippine Islands.
"To the Chief of Police, city of Manila, or to any peace officer.
Greeting: Whereas, after an investigation duly conducted in accordance with the provisions of section 69 of the
Administrative Code (Act No. 2711), it appears that R. McCulloch Dick is a subject of a foreign power, residing in
the Philippine Islands;
"Whereas it further appears that said R. McCulloch Dick is an undesirable alien, whose presence in the Philippine
Islands is a menace to the peace and safety of the community ;
"Now, therefore, by virtue of the powers in me vested, you are hereby authorized and ordered to deport said R.
McCulloch Dick to the neighboring Colony of Hongkong, and thereafter to exclude him from these Islands.
"In testimony whereof I have hereunto set my hand and caused the seal of the Government of the Philippine Islands
to be affixed.
"Done at the city of Manila this 18th day of March, in the year of our Lord nineteen hundred and eighteen.
(Sgd.) "Francis Burton Harrison,
"Governor-General.
"[seal]
Served on Mr. Dick at 4 p. m., 18/3/18.
(Sgd.) "George Seaver,
"Chief of Police:"
The record of the proceedings had in the course of the investigation referred to in the executive order is before us,
and discloses that a "hearing" was conducted by Colonel D. P. Quinlan, Inspector General of the Philippine
National Guard, Commissioner, under the following authority:
"Office of the Governor-General of the
Philippine Islands.
"February 23, 1918.
"Sir : Pursuant to authority vested in me by section sixty-nine of Act 2711, known as the Administrative Code of
1917, you are hereby designated as the agent of the Governor-General for the purpose of investigating and
reporting upon charges which have been preferred against R. McCulloch Dick, the editor and proprietor of the
Philippines Free Press, a periodical published weekly in the city of Manila, in connection with the publication of
certain articles in that paper which tend to obstruct the Government of the Philippine Islands in policies
inaugurated for the prosecution of the war between the United States and the German Empire, and other articles
which have tended to create a feeling of unrest and uneasiness in the community. It is desired that you submit your
report of this investigation to the Governor-General at the earliest possible date.
"Very respectfully.
(Sgd.) "Francis Burton Harrison,
"Governor-General
"Colonel D. P. Quinlan,
Philippine National Guard, Manila."
It further appears that on February 25, 1918, notice in writing that a hearing would be had in pursuance of the
above-cited executive order on March 1, 1918, was duly served upon, and accepted by the petitioner; that the
petitioner was present at the hearing, and was heard by himself and counsel; that he produced witnesses in his own
behalf, and was allowed to cross-examine the opposing witnesses; and that at the conclusion of the hearing,
counsel for the petitioner made the following statement:
"I want to thank the Commissioner for his courtesy throughout the matter. I am sure that his conduct has been
absolutely impartial, and I have no complaint to make. I don't know how the investigation could have been
conducted along fairer broader lines, than it has been conducted, and I am sure that Colonel Quinlan's standing as
an Army officer will not be at all prejudiced by anything he has done or what has occurred at this investigation."
These summary proceedings were set in motion by a complaint filed by a number of officers of the National Guard,
in the form of a protest as follows:
"Whereas the weekly 'Free Press' has for sometime been devoting its columns to a malicious campaign of discredit
against the National Guard and its officials;
"Whereas the National Guard represents one of the most noble ideals of the Filipino people and one of the most
sincere proofs of the loyalty of this country to the cause of the United States;
"Whereas this campaign of defamation and discredit carried out by the said weekly, published and edited by
Americans, tends to belittle the National Guard and might in its effects, create discord between Americans and
Filipinos, just at the moment that the latter have staked its honor and its word with America in this war;
"Whereas even admitting that in the ranks of the National Guard there may exist some soldiers who with their
actions dishonor the uniform they wear which after all occurs in every human institution even the most sacred the
campaign of the Free Press could not be considered as an honest one, but this weekly is in fact pouring distrust and
sarcasm of the most venemous character;
"Whereas the Free Press in reporting certain dishonorable acts of certain soldiers has not taken the pains to inquire
as to the penalty which the rules apply to those who do not honor the uniform, thus doing rank injustice to the
authorities of the National Guard and the good name of this organization;
"Whereas the habitual malign conduct of the Free Press in its campaigns of discredit renders its ratifications to be
as meaningless as its attacks;
"Be it therefore resolved, that an energetic protest be made, as it is hereby made, admitting of no rectifications,
against the base conduct of the weekly Free Press and to denounce its attitude before the Government and the
entire community of the Philippines as showing this weekly to be the worst enemy of the people's ideals and of the
National Guard, in using its columns to humiliate not only before the eyes of strangers but of the Filipinos as well,
the National Guard in its period of formation and development.
[Translated from the original in Spanish.]
The specific charges upon which the investigation was based will be found in the following copy of the notice
served upon the petitioner at the outset of the proceedings;
 "121 Arzobispo, Manila, P. I.,
"February 23, 1918.
"Mr. R. McCulloch Dick,
"Editor and proprietor, Philippines Free Press, Manila, P. I.
"Sir : The attention of His Excellency the Governor-General of the Philippine Islands has been called to certain
articles appearing in the Philippines Free Press, a periodical published in the city of Manila in which you appear as
editor and proprietor. Aside from those matters in your previous issues relevant to show inclination or intent, the
particular matter which is referred to him as a charge against you is that contained in articles in the issue of the
Press of February 16, 1918, in connection with National Guard.
"The specific publications forming the basis of these charges appear in column 1, on page 1 of the issue of
February 16, 1918, and in the opening paragraph of the second column of page sixteen of the same issue. The
allegation being that the indictment contained therein is not only a wholesale untruth but that its publication even in
the event of guilt of individuals, a condition not proven the arraignment of a body of citizens of the Philippine
Islands included in its military force, is without warrant, and also that in view of the fact that the United States
Government is a belligerent in the present war, and that the Congress of the United States having authorized the
use of this force, your attempt tends not only to bring it into ridicule but also is an unjust, unlawful, malicious, and
essentially seditious publication, and cannot be considered other than as prima facie tending to obstruct the
Government of the Philippine Islands in the formation of measures inaugurated for the prosecution of the war
between the United States and the German Empire, and its policies with respect to these nations and peoples
associated with it in the performance of the war objects.
"Pursuant to authority vested in His Excellency the Governor-General of the Philippine Islands, by section 69 of
Act 2711, known as the Administrative Code of 1917, the undersigned has been designated as the agent of the
Governor-General for the purpose of investigating and reporting upon your conduct and responsibility in
connection with the publication of these articles, which I am directed to have you consider as forming the basis of
charges lodged against you with the Governor-General, the publication of which it is charged, that to obstruct the
Government of the Philippine Islands in policies inaugurated for the prosecution of the war between the United
States and the German Empire, and that these specific publications with other articles in your paper in criticism of
the allied efforts in prosecution of this war, or the policies of our associates in this war all of which apparently
show that your interest in publishing the latter articles obstructs the Government of the United States and tends to
create a feeling of unrest and uneasiness in the community, and marks the party responsible for the policies and
declarations in your paper as being designatedly hostile to the paramount interests of the power exercising
sovereignty in these Islands and the measures of the Philippine people inaugurated to support those policies.
"As the procedure prescribed by section sixty-nine of the Administrative Code is to be observed in this particular
case, I take the liberty of quoting it here in full:
" 'SEC. 69. Deportation of subject of a foreign power. A subject of a foreign power residing in the Philippine
Islands shall not be deported, expelled, or excluded from said Islands or repatriated to his own country by the
Governor-General except upon prior investigation, conducted by said executive or his authorized agent, of the
ground upon which such action is contemplated. In such case the person concerned shall be informed of the charge
or charges against him and he shall be allowed not less than three days for the preparation of his defense. He shall
also have the right to be heard by himself or counsel, to produce witnesses in his own behalf, and to cross-examine
the opposing witnesses.'
"I will conduct this hearing in the Office of the Adjutant-General of the National Guard at 121 Calle Arzobispo of
this city, Friday morning at 9 o'clock, March 1, 1918; said hearing to continue throughout the day until completed.
My function, you are advised, is solely administrative and confined to a hearing of and a report upon the facts.
(Sgd.) "D. P. Q.,
"Dennis P. Quinlan, Colonel and Inspector General,
N. G., P. I."
One of the articles, upon which these charges were based appeared on the first page of the Philippine Free Press of
February 16, 1918, under a striking cartoon giving point to the contents. It is as follows:
"It hasn't come yet, but it is expected soon, that call of President Wilson which will incorporate the Philippine
National Guard in the national forces of the United States. And, when it comes, look out! For it brings with it an
increase of the base pay of a soldier of the Guard from P12 a month to P60 a month, and clothes and chow, and,
my! what chow! The best in the world! For Uncle Sam thinks nothing too good for his soldier boys.
"And you just watch 'em when the call comes. Talk about a dearth of patriots for the Guard! Why, the moment the
news gets around that you can get P60 a month and your belly full by enlisting, just see them come see them streak
for the recruiting office! Behold the cocinero drops his frying-pan, the muchacho his dishrag, the cochero his whip,
the cargador his pinga, the escribiente his pen, the farmhand his bolo. See them hit the high places! For who, after
slaving for eight and nine and ten and fifteen and twenty pesos a month Wouldn't jump at the chance to be a soldier
and carry a gun and have a fine and easy time at pesos sixty! Talk about manna from the skies! Talk about the
world with a fence around it! Talk about heaven on earth! Talk about Jay Gould and Carnegie and Rothschild and
Rockefeller! Piff!
"Flanders mud, you say, and being blown to pieces with a big Black Maria? Why, at P60 a month our Juans and
Pedros and Dalmacios will eat Flanders and dance ragtime to the tune of the Black Marias.
"If ever that call come there is going to be one great and awful time here. And there is going to be some tall
swearing in proud Castillian. For the market in cocheros and muchachos and cocineros is going to be tight as a
drum and they will simply turn up their noses disdainfully at anything less than the wages of the Guard P60 a
month. What ho! the Guard!"
The second article to which specific reference was made by Colonel Quinlan was published in the editorial column
of the same issue of the Free Press, and is as follows:
KNOW HOW TO FORAGE.
"If the men of the Philippine National Guard can fight like they can steal then the Kaiser and his legions had better
beat it before the boys from the Philippine are sent 'over there.' The details of the first case which appeared in the
papers have slipped us now. It was not long thereafter, however, till there was recorded the Manila Hotel case,
where the turkeys kept disappearing. When the watch was set during the night and the thief caught National Guard!
Then there was the case of a candidate for a commission as officer of the Guard. Took off his coat, he did, to be
measured for the physical test. When he came to put it on again, lo, his watch was gone. Again a guardsman! The
latest testimonial to the Guards' ability to get away with things comes from the Carnival! When the cakes
mysteriously disappeared from the Tea Cup Inn on the last night of the big festival, it was to the tent of the sentries
that the telltale tracks led, and there were found the crumbs of the midnight feast. Again the Guard! In one of
Shakespeare's plays there is mention of three soldier rogues in buckram. The guard is not in buckram, but
apparently it has its rogues."
It is agreed on all sides, and expressly admitted by counsel for the petitioner, that if the Governor-General of the
Philippine Islands has power to deport aliens as an act of state; and if he has followed the procedure marked out for
the exercise of that power in section 69 of the Administrative Code; and if the petitioner is a "subject of a foreign
power;" this court has no power to interfere with or to control the action of the Governor-General in ordering the
deportation of the petitioner.
If the discretionary power to deport aliens, as an act of state, has been conferred upon the Governor-General, to be
exercised by him upon his own opinion as to whether the facts disclosed by an investigation had in accord with
section 69 of the Administrative Code, justify or necessitate deportation in a particular case, he is the sole and
exclusive judge of the existence of those facts, and no other tribunal is at liberty to reexamine or to controvert the
sufficiency of the evidence on which he acted. (Martin vs. Mott [1827], 12 Wheat., 19, 31.)
Upon both principle and authority the proposition thus stated is not open to question (Cf. Severino vs. The
Governor-General of the Philippine Islands and Provincial Board of Occidental Negros, 16 Phil. Rep., 366, and
cases there cited); and although it has been suggested that the power of the courts to review the action of the Chief
Executive is subject to further limitations, we do not deem it necessary to consider or to determine at this time the
precise line of demarcation of judicial and executive authority in cases such as that now under consideration,
because we are satisfied that the petitioner's prayer for discharge from custody must be denied upon the specific
grounds which he himself admits to be sufficient, if they exist, to deprive us of power to interfere with or to control
the action of the Governor-General in ordering his deportation.
We are of opinion that the Governor-General of the Philippine Islands has power to deport aliens as an act of state,
"upon prior investigation" conducted in the manner and form prescribed in section 69 of the Administrative Code;
that in ordering the deportation of the petitioner he followed the procedure marked out for the exercise of that
power in section 69 of the Administrative Code; and that the petitioner is a "subject of a foreign power" as that
term is used in this section of the code.
We shall take up each of these propositions for consideration separately, but for convinience, they will be examined
in inverse order.
(1) Petitioner is a "subject of a foreign power" as that term is used in section 69 of the Administrative Code.
The record discloses and it is expressly admitted that petitioner was born in Scotland, a subject of His Britannic
Majesty the King of England; that he came to the United States during his minority; that he declared his intention
to renounce his allegiance to the King of England and to become a citizen of the United States in the year 1902, in
a court of competent jurisdiction in the State of New York; that not long thereafter he came to the Philippine
Islands and has continued to reside here ever since; that in the year 1912, after having been denied an American
passport, he secured a British passport from the British Consul-General in Manila, and travelled under its
protection in the United States and Europe; that on that occasion he visited his old home in Scotland; and that since
declaring his intention to become a citizen of the United States, in the year 1902, he has taken no further steps
looking to his naturalization other than to maintain his domicile, and to continue to reside within the territory of the
United States.
We are of opinion that any such rights as the petitioner may have acquired by virtue of the declaration of his
intention to become a citizen, fifteen years ago, have been lost by the lapse of time without taking any further steps
to become naturalized, and by his acceptance and use of a British passport in the year 1912; and we are of opinion,
further, that he did not cease to be an alien and a subject of a foreign state by virtue of his mere declaration of
intention to become a citizen of the United States.
It would seem unnecessary to enter upon an extended discussion of the grounds upon which we rest our
conclusions in this regard, and we content ourselves with some citations of textbook and other authority which, as
we think, sufficiently dispose of all the contentions of counsel for the petitioner upon this branch of the case.
"Effect of declaration of intention. Though mere declaration of intention in no wise confers citizenship or absolves
the party making it from allegiance to the Government of the country from which he comes, yet our Secretary of
State is authorized by Act of Congress to issue passports, at his discretion, to persons who are not fully naturalized
in certain cases." (Hershey's International Law, pp. 251-2; sec. 1, Act of March 2, 1907.)
The Act of Congress referred to provides:
"Where any person has made a declaration of intention to become such a citizen as provided by law, and has
resided in the United States for three years, a passport may be issued to him entitling him to the protection of the
Government in any foreign country: Provided, That such passport shall not be valid for more than six months and
shall not be renewed, and that such passport shall not entitle the holder to the protection of this Government in the
country of which he was a citizen prior to making such declaration of intention." (Sec. 1 of Act of March 2, 1907.)
"Clearly, an alien is not naturalized until the order divesting him of his former nationality and making him a citizen
of the United States has been signed by a judge of a court having jurisdiction." (26 Ops. Atty. Gen., [1906-1908]
612.)
"A mere 'declaration of intention' by an alien, under the naturalization laws of the United States, to become a
citizen, &c., and to renounce all allegiance to a foreign, his natural sovereign, in a judicial point of view, is not
sufficient of itself, and without being perfected by an actual renunciation, to prevent such alien from being
regarded as a 'foreign citizen or subject,' * * * ." (Baird vs. Byrne [C. C, 1853] Fed, Cas. No. 757.)
"A foreign-born resident of the United States, who has merely declared his intention to become a citizen, but has
never complied with any other provision of the naturalization laws, is none the less an alien," although he may
have been given the right to vote by state laws. (City of Minneapolis vs. Reum [1893], 56 Fed., 576, 6 C. C. A.,
31.)
"A declaration of intention to become a citizen of the United States does not make one a naturalized citizen."
(Creagh vs. Equitable Life Assur. Soc. [C. C, 1898], 88 Fed., 1; 11 U. S. Compiled Statutes, 1916, Ann., 14034.)
"An alien's declaration of his intention to become a citizen of the United States did not make him a citizen, he
never having taken out his naturalization papers." (Minneapolis vs. Reum [1893], 56 Fed., 576, 578; 6 C. C. A., 31;
Wallenburg vs. Missouri Pac. Ry. Co. [C. C, 1908], 159 Fed., 217; In re Polsson, Id., 283; Dorsey vs. Brigham
[1898], 52 N. E., 303; 177, 111., 250; 42 L. R. A., 809; 69 Am. St. Rep., 228; State vs. Collister [1905], 27 Ohio
Cir. Ct. R., 529.)
"Mere declaration of intention does not confer citizenship upon the declarant. The declaration is merely an
expression of purpose, and has not the effect, either of naturalization or expatriation. By it the alien simply records
his intention to renounce his present allegiance on becoming a citizen of the United States. He remains an alien
until naturalization is complete according to our laws." (Lans vs. Randall, 4 Dill., 425; Fed. Cas. No. 8,080; Maloy
vs. Duden, 25 Fed., 673; Re Moses, 82 Fed., 995.)
*******
"While the laws of several of the states of the Union extend the right of suffrage to aliens who have declared their
intention to become citizens of the United States, a State cannot make the subject of a foreign government a citizen
of the United States, or confer on him the rights and privileges appertaining to such citizenship.
*******
"A state may confer on foreign citizens or subjects all the rights and privileges it has the power to bestow, but when
it has done all this, it has not naturalized them. They are foreign citizens or subjects still, within the meaning of the
Constitution and laws of the United States. See also Boyd vs. Nebraska, 143 U. S., 160; 36 L. ed., 109; 12 Sup. Ct.
Rep., 375." (Van Dyne Citizenship of the U. S., pp. 66-67.)
"The provision of the Naturalization Act of June 29, 1906, c. 3592, 84, 34 Stat, 596 [U. S. Comp. St. Supp. 1907, p.
421], requiring a petition for naturalization to be filed not less than two nor more than seven years after the
declaration of intention is in the nature of a statute of limitation, and since it contains no language indicating a
contrary intention must be so construed as not to cut off the privilege of aliens who had made declaration of
intention prior to its enactment to become citizens, but in such cases to give them seven years thereafter within
which to file their petition." (In re Wehrli [D. C, 1907], 157 Fed., 938; Eichhorst vs. Lindsay [D. C, 1913], 209
Fed., 708; U. S. vs. Lengyel [D. C, 1915], 220 Fed., 720; 5 U. S. Compiled Statutes [1916], 5224.)
Rules governing the granting and issuing of passports to those who have declared their intention to become citizens
of the United States:
"(1) The first section of the Act approved March 2, 1907, 'in reference to the expatriation of citizens and their
protection abroad,' provides That the Secretary of State shall be authorized, in his discretion, to issue passports to
persons not citizens of the United States as follows: Where any person has made a declaration of intention to
become such a citizen as provided by law and has resided in the United States for three years, a passport may be
issued to him entitling him to the protection of this Government in any foreign country; Provided, That such
passport shall not be valid for more than six months and shall not be renewed, and that such passport shall not
entitle the holder to the protection of this Government in the country of which he was a citizen prior to making
such declaration of intention.'
"(2) This section is not intended to confer upon persons who have only declared their intention to become citizens a
general right to receive passports upon application. Such passports will be issued only when it is affirmatively
shown to the Secretary of State that some special exigency requires the temporary absence of the applicant from
the United States, and that without such absence the applicant would be subjected to special hardship or injury.
Under this law passports cannot be issued to declarants who intend visiting their native lands.
"(3) Such passports will not be issued to those who have made the declaration of intention and who have failed,
through their own neglect, to complete their intention and secure naturalization as citizens of the United States; nor
to those who may make the declaration of intention in order to secure passports and leave the United States, nor
shall more than one such passport be issued to any applicant.
"(4) It is therefore ordered that before a passport shall be issued to anyone who has made the declaration of
intention to become a citizen of the United States the following facts shall be established to the satisfaction of the
Secretary of State:
"(f) That the applicant has not applied for or obtained a passport from any other Government since he declared his
intention to become a citizen of the United States.
(Sgd.) "W. J. Bryan.
"Department of State,
"Washington, June 1, 1915.
"In the case of George Adam vs. The United States, No. 4, before the claims commission under the treaty of
Washington of May 8, 1871, it appeared that the claimant, who was born in London in 1827, emigrated to the
United States in 1850, that he had since continuously resided in the latter country, and that in 1859, he declared his
intention to become a citizen of the United States. The United States demurred to the memorial on the ground,
among others, that the claimant was not a British subject within the true meaning of the treaty; that the declaration
of intention was, 'of itself,' 'a complete renunciation of all claims upon the intervention or protection of the
sovereign' whose allegiance he had announced his intention to abjure; that this declaration by the laws of many, if
not all of the United States, gave him, of itself, many of the rights of a citizen; that it certainly put him, so long as
he remained in the United States, under the protection of that Government for international purposes; that in the
case of Koszta it was asserted by the United States as a sufficient ground for protection even while abroad; and that
it subjected the claimant, by the laws and usages of the United States, to conscription and enrollment for military
service.
"Counsel for Great Britain replied that the claimant's declaration of intention worked 'no change in his status under
the law of nations;' that the intention so declared might be abandoned at pleasure; that while it 'might furnish to his
sovereign a sufficient reason to decline interference in his behalf,' it 'did not purport to bring him under any new
obligation to the country which he then intended to adopt;' that the British Government had not declined to protect
him, but on the contrary presented his claim for indemnity; that the declaration gave him no right 'as a citizen of the
United States;' that the rights which might result under State laws did not affect his condition as an alien; that he
could not so much as claim from the United States a passport for his protection abroad; that the case of Koszta was
without precedent, and had been repudiated by the United States itself, so far as it had been appealed to as
recognizing the right of persons by virtue of a declaration of intention to be considered as citizens of the United
States; that the statute of the United States authorizing the conscription of such persons did not pretend to change
their allegiance, and gave them no rights or privileges in consequences of the conscription."
Similar facts and arguments were presented in other cases. The commissioners unanimously rendered the following
opinion:
" 'The question is raised as to whether in consequence of the claimants having declared their intention to become
citizens of the United States and to renounce their allegiance to Her Britannic Majesty they have ceased to be
British subjects within the meaning of the treaty. We are of opinion that notwithstanding the claimants having
expressed their intention, they still remain British subjects until, the necessary formalities having been completed,
they acted upon the intention so expressed.'" (See Hale's Report, 14 Am. and British Claims Commission, treaty of
May 8, 1871; Moore, International Arbitrations, Vol. 3, pp. 2552-2553.)
By the Act of Congress approved March 2, 1907, the right of expatriation is expressly declared, and all claims that
naturalized American citizens, with their descendants, continue to be subjects of foreign states, are "finally
disavowed;" and the Secretary of State is authorized, in his discretion, to issue passports to certain persons "not
citizens of the United States," including under certain conditions "any person who has made a declaration of
intention to become such citizens." But the express disavowal of claims that naturalized citizens continue to be
subjects of foreign states after their naturalization, considered together with the omission of any such disavowal as
to persons who have merely declared their intention to become such citizens; and the restrictions and limitations
placed upon the rights and privileges of such persons, especially the prohibition upon the issuance to them of
passports to visit their native lands, quite clearly disclose the recognition on the part of Congress of the settled
doctrine of International Law that an alien does not cease to be an alien and a subject of a foreign state, by the mere
declaration of his intention to become a citizen of the United States.
The right of expatriation is declared in the Act in the following language:
"Whereas the right of expatriation is a natural and inherent right of all people, indispensable to the enjoyment of
the rights of the life, liberty, and the pursuit of happiness ; and whereas in the recognition of this principle this
Government has freely received emigrants from all nations, and invested them with the rights of citizenship; and
whereas it is claimed that such American citizens, with their descendants, are subjects of foreign states, owing
allegiance to the governments thereof; and whereas it is necessary to the maintenance of public peace that this
claim of foreign allegiance should be promptly and finally disavowed: Therefore any declaration, instruction,
opinion, order, or decision of any officer of the United States which denies, restricts, impairs, or questions the right
of expatriation, is declared inconsistent with the fundamental principles of the Republic." (United States Compiled
Statutes, 1916, vol. 4, pp. 3952-3955.)
(2) The procedure marked out in section 69 of the Administrative Code of 1917, for the exercise by the Governor-
General of the power to deport, has been followed in every particular in the instant case.
As we understand it, there is no divergence of opinion among the members of the court as to this proposition.
Certainly we have heard none. Extended discussion is therefore unnecessary.
A cursory examination of the record, or of the admitted facts set out in the statement of the case at the beginning of
this opinion, will remove all doubt in this regard.
(3) The Governor-General of the Philippine Islands has power to deport aliens, as an act of state, upon prior
investigation conducted in the manner and form prescribed in section 69 of the Administrative Code.
Resting our conclusion in this regard upon the provisions of section 69 of the Administrative Code of 1917, read in
the light of the rulings of the Supreme Court of the United States in the case of Tiaco vs. Forbes (228 U. S., 551), it
is not necessary, at this time, to determine whether, under the various organic acts of the Philippine Government,
the power to deport aliens, as an act of state, is vested in the Governor-General "by virtue of his office alone,"
subject merely to regulation by the Philippine Legislature; or whether his authority in the premises is derived
wholly from the Philippine Legislature by virtue of a grant of power, express or implied, in section 69 of the
Administrative Code of 1917; because deportations of aliens by the Governor-General, as an act of state, upon
prior investigation conducted in the manner and form prescribed in section 69 of the Administrative Code may
properly be regarded as made "under the combined powers" of the Governor-General and the Philippine
Legislature; authority for such deportations having been conferred upon the Governor-General, so far as that may
be necessary, by the provisions of that section, as we believe and shall endeavor to show hereafter.
We may, therefore, dispose of most of the contentions of counsel for petitioner as to the lack of power of the
Governor-General in the premises, in the very language of the Supreme Court of the United States in the case of
Tiaco vs. Forbes (228, U. S. 549) :
"The deportation is to be considered as having been ordered by the Governor-General in pursuance of a statute of
the Philippine Legislature directing it, under their combined powers, and it is unnecessary to consider whether he
had authority by virtue of his office alone, as declared by the statute, or whether, if he had not, he had immunity
from suit for such an official act done in good faith. The former matter now is regulated by a later statute providing
for a hearing, etc. (No. 2113. February 1, 1912.) On the question thus narrowed the preliminaries are plain. It is
admitted that sovereign states have inherent power to deport aliens, and seemingly that Congress is not deprived of
this power by the Constitution of the United States. (Fong Yue Ting vs. United States, 149 U. S., 698, 707s 728;
Wong Wing vs. United States, 185 U. S., 296, 302; Turner vs. Williams, 194 U. S., 279, 289, 290.) Furthermore, the
very ground to the power in the necessities of public welfare shows that it may have to be exercised in a summary
way through executive officers. (Fong Yue Ting vs. United States, supra; United States vs. Ju Toy, 198 U. S., 253,
263; Moyer vs. Peabody, 212 U. S., 78, 84, 85.) So that the question is narrowed further to the inquiry whether the
Philippine Government can not do what unquestionably Congress might.
"As Congress is not prevented by the Constitution, the Philippine Government can not be prevented by the
Philippine Bill of Rights alone. (Act of July 1, 1902, c. 1369, sec. 5; 32 Stat, 691, 692.) Deporting the plaintiffs
was not depriving them of liberty without due process of law, unless on other grounds the local government was
acting beyond its powers. But the local government has all civil and judicial power necessary to govern the Islands.
(Act of March 2, 1901, c. 803; 31 Stat, 895, 910; Act of July 1, 1902, c. 1369, sec. 1; 32 Stat., 691.) The forms are
diffrent, but as in Hawaii the proximate source of private rights is local, whether they spring by inheritance from
Spain or are created by the Philippine Legislature. (See Kawananakos vs. Polyblank, 205 U. S., 349, 354; Perez vs.
Fernandez, 202 U. S., 80, 91, 92.) It would be strange if a Government so remote should be held bound to wait for
the action of Congress in a matter that might touch its life unless dealt with at once and on the spot. On the
contrary, we are of opinion that it had the power as an incident of the self-determination, however, limited, given to
it by the United States.
"By section 86 of the Act of July 1, 1902, all laws passed by the Philippine Government are to be reported to
Congress, which reserves power to annul them. It is worthy of mention that the law under consideration was
reported to Congress and has not been annulled. The extension of the Chinese exclusion and immigration laws to
the Philippine Islands has no bearing on the matter. The right to remain, for instance, under the Act of April 29,
1902, c. 641, section 4; 32 Stat., 176, does not prevail over a removal as an act of state."
The argument for plaintiff in error in the Tiaco vs. Forbes case in the Supreme Court of the United States has been
renewed on this occasion, and we here insert an extract, or summary of the contentions of counsel for the plaintiff
in error in the former case, as found in the report of that case (228 U. S., 551), because the disposition of these
contentions in the above-cited opinion of the Supreme Court of the United States relieves us of the burden of
extended discussion of many, ff not most, of the contentions of counsel for the petitioner in this case.
Counsel for the plaintiff in error in the former case contended fruitlessly that:
"The Government of the Philippine Islands has no power to deport aliens.
"The authorities cited on the existence of an inherent power to deport foreigners sustain the proposition only as to
sovereign states in which that power is inherent as an essential element of sovereignty. That power does exist
inherently in sovereign states.
"The Philippine Government, however, is not a sovereign community, at least in an international sense, but a mere
dependency of the United States, limited to the exercise of such powers only as those with which it is vested by its
organic act.
"Since the source of all power in the government of the Philippine Islands is the Congress of the United States, it
must follow that if it has the power to expel aliens it must have been granted that power by Congress, either
directly or by necessary implication.
"While Congress may assign to Federal officers, either in the United States or the Philippine Islands, the power to
execute the provisions of such acts as Congress may pass regulating the exclusion or expulsion of foreigners from
territory subject to the dominion of the United States, it is at least extremely doubtful whether it could delegate to
the Philippine Government its sovereign power to exclude aliens. (Stoutenburgh vs. Hennick, 129 U. S., 141.) In
any event this power could only be exercised subject to the limitation of the due-process clause of the Federal
Constitution and the Philippine Bill of Rights.
"Congress has not delegated to the Philippine Government the power to exclude or expel foreigners.
"The power was not delegated by the President's instructions to the Commission of April 7,1900; the Executive
Order of June 21, 1901; the Spooner Amendment; or the Organic Act of July 1, 1902. (See 26 Ops. Atty. Gen.,
[Dec. 10, 1906], pp. 91, 96; Ops. Atty. Gen., pp. 534, 541.)
"Congress had already acted.
"Aside from the absence of authority to be found in the Organic Act of the Philippines conferring the right,
Congress, both prior to and after the passage of the Organic Act, had legislated for the Philippines regarding the
regulation of the admission and exclusion of foreigners. (See Act of April 29, 1902, making all the Chinese
exclusion laws in force in the United States applicable to the Philippines ; also section 33 of the Immigration Act of
March 3, 1903; section 33 of the present Immigration Act in force; section 6 of the Act of February 6, 1905.)
"The regulation of the admission or exclusion of all aliens into or from the Philippine Islands was a subject never
entrusted to the Government or its officers (except to the extent of enforcing the immigration and exclusion laws of
the United States applicable to the Philippines). (In re Allen, 2 Phil. Rep., 630.)
"The regulation of the conditions under which foreigners may enter into and reside in the territory of the United
States is incidental to the general and exclusive power vested in Congress to regulate commerce with foreign
nations.
'The Governor-General has no such power.
'There being no power in the Philippine Legislature to legislate regarding the exclusion of foreigners from the
Philippines in the first instance, their action could not constitute a ratification of what was done by the Governor-
General.
"The deportation of the plaintiffs in error was without due process of law.
"The subject of the exclusion or expulsion of foreigners from any portion of the vast domains of the United States
is one over which Congress has complete control.
"Congress would not concede to a dependent community powers inherent in the United States as a sovereign
member of the family of nations, and powers which the various States of the Union have essayed in vain to
exercise.
"The plaintiffs in error were entitled to maintain their residence in the Philippines under the Chinese Exclusion
Laws and for these and other reasons their deportation was illegal and without due process of law."
It is urged, however, that since the date of the decision of the Supreme Court of the United States in the Tiaco vs.
Forbes case (May 5, 1913) congressional legislation has deprived the Governor-General and the Philippine
Legislature of authority to deport aliens except as therein provided, even when acting under their combined
powers.
The Act of Congress approved August 29,1916 (popularly known as the Jones Law); and the Act of Congress
which became law over the veto of the President, February 5, 1917 (The Immigration Law), are relied upon in
support of this contention.
(A) But the Jones Law (Act of August 29, 1916) as expressly appears from its preamble was enacted "to provide a
more autonomous Government" for the Philippine Islands, and the reasons assigned in the former case for the
recognition of the power to deport aliens in the government of the Philippine Islands "as an incident of the self-
determination, however limited, given to it by the United States," apply with even greater force under that statute
than under the earlier organic Act (Act of March 2, 1901 and Act of July 1, 1902.)
Furthermore, the Jones Law (section 6) expressly continued "in force and effect" all laws then "in force" in the
Philippine Islands (except as altered, amended, or modified by its terms or by subsequent legislation), including
section 83 of the Administrative Code of 1916 (which incorporated the provisions of Act No, 2113, and is identical
with section 69 of the Administrative Code of 1917). Prior to the enactment of the Jones Law, this court, in an
unanimous opinion in the Chan Yick Sam case, promulgated October 1, 1915 (31 Phil. Rep., 560), had expressly
construed the language used in Act No. 2113 and held, that under its provisions the Governor-General was
authorized to institute and maintain deportation proceedings in the manner and form prescribed therein. It will be
seen, therefore, that far from depriving the Governor-General and the Philippine Legislature of authority to deport
aliens, the Jones Law expressly ratified and continued in force the statutory grant by the Philippine Legislature of
authority to the Governor-General to deport aliens "upon investigation" conducted in the manner and form
prescribed in these statutes.
Some question is now raised as to the correctness of the construction placed upon the provisions of the Philippine
statute (Act No. 2113) in the Chan Yick Sam case (supra) and it is urged that, correctly construed, the language of
this statute was not intended to confer authority, anfl should be held to furnish merely the procedure by which the
action of the Governor-General must be regulated in the deportation of aliens.
We do not agree with these contentions, as will appear at greater length hereafter. But even if it were true that the
court erred in its interpretation of the language of the statute in the Chan Yick Sam case (supra), we think that
under well-settled rules of statutory construction, this statute, when incorporated into and "continued in force" as a
part of the Administrative Code, after it had been construed by this court; and when ratified and again "continued
in force" by the enactment by Congress of the Jones Law; must be held to have been thus "continued in force" by
Congress and the Philippine Legislature with the meaning and effect placed upon it in the Chan Yick Sam decision
(supra) ; that is to say, as a grant of regulated power to deport aliens after investigation conducted in the manner
and form prescribed in the statute.
When the provisions of Act No. 2113 were enacted and "continued in force" by the enactment of the
Administrative Code, and again "continued in force" by the enactment of the Jones Law the construction
theretofore placed upon it by this court became an integral part of these statutes "having the force and effect of a
legislative command."
Supported by numerous citations of authority the doctrine is set forth as follows by Sutherland in his work on
Statutory Construction (vol. II, 2d. ed., sections 403 and 404):
"403. In the interpretation of reenacted statutes the court will follow the construction which they received when
previously in force. The legislature will be presumed to know the effect which such statutes originally had, and by
reenactment to intend that they should again have the same effect. The same rule applies to the readoption of a
constitutional provision. It is not necessary that a statute should be reenacted in identical words in order that the
rule may apply. It is sufficient if it is reenacted in substantially the same words. The same principle applies when a
statutory provision is taken from a constitutional provision which has been construed. The rule has been held to
apply to the reenactment of a statute which has received a practical construction on the part of those who are called
upon to execute it. The Supreme Court of Nebraska says: 'Where the legislature in framing an act resorts to
language similar in its import to the language of other acts which have received a practical construction by the
executive departments and by the legislature itself, it is fair to presume that the language was used in the later act
with a view to the construction so given the earlier.' * * *
"404. When a statute is adopted from another state or county and such statute has previously been construed by the
courts of such state or county, the statute is deemed, as a general rule, to have been adopted with the construction
so given to it. The same rule applies to the adoption of a constitutional provision from another state. So when
congress adopts a state statute for the District of Columbia. Where the foreign statute is mainly adopted, though not
entirely and unchanged, the prior decisions of the foreign court are held to be entitled to great weight. Congress
extended certain laws of Arkansas over the Indian Territory, and it was held that the construction previously placed
upon them by the supreme court of Arkansas should be followed. * * * It is held that the general rule should not be
departed from except for the strongest reasons."
(B) The contention that Congress, by the enactment of the Immigration Act of 1917, and the extension of its
provisions to the Philippine Islands, "occupied the field," and thereby deprived the Government of the Philippine
Islands of power to deport aliens, except as provided in the Act itself, would seem to be substantially identical with
the contention, adversely disposed of by the Supreme Court of the United States in the Tiaco vs. Forbes case, to the
effect that "the subject of the exclusion or expulsion of foreigners from any portion of the vast domains of the
United States is one over which Congress has complete control" and that "Congress, both prior to and after the
passage of the Organic Act, had legislated for the Philippines regarding the regulation of the admission and
exclusion of foreigners" by making the Chinese exclusion laws applicable to the Philippine Islands and by the
enactment of the Immigration Acts of March 3, 1903, and of February 6, 1905.
In an attempt to distinguish the effect of the extention of the Immigration Act of 1917 to the Philippine Islands,
from that given by the Supreme Cou.rt of the United States to the like extension of the Chinese exclusion laws and
the Immigration Acts in force when the Tiaco vs. Forbes decision was rendered, it is contended that the express
provisions in the Immigration Act of 1917 for the regulation of the residence and the deportation of immigrants,
under the terms of section 19 of the Act, is an implied negation of authority to the Government of the Philippine
Islands to deport aliens for any other reason whatever. But it will be remembered that the Chinese exclusion laws,
in force when the Tiaco vs. Forbes decision was rendered, also contained provisions for the regulation of the
residence and the deportation of Chinese persons, and a like contention as to the rights of the plaintiff in error in
that case, who was a Chinese person, to be exempt from deportation as an act of state, for any reason not specified
in the Chinese exclusion laws and the Immigration Acts of 1903 and 1905, was fruitlessly urged upon the Supreme
Court of the United States.
As will be seen, in the citation from the opinion in the Tiaco vs. Forbes case (supra) the Supreme Court of the
United States dealt with these contentions very summarily merely observing that "The extension of the Chinese
exclusion and immigration laws to the Philippine Islands has no bearing on the matter. The right to remain, for
instance, under the Act of April 29, 1902 (c. 641, par. 4, 32 Stat., 176), does not prevail over a removal as an act of
state." We think that a like disposition should be made of the contentions of counsel based on the provisions of the
Immigration Act of 1917.
It is to be observed, furthermore, that the Immigration Act of 1917 expressly provides:
"That this Act shall be enforced in the Philippine Islands by the officers of the general government thereof, unless
and until it is superseded by an act passed by the Philippine Legislature and approved by the President of the
United States to regulate immigration in the Philippine Islands as authorized in the Act entitled 'An Act to declare
the purpose of the people of the United States as to the future political status of the people of the Philippine Islands,
and to provide a more autonomous government for those islands' approved August twenty-ninth, nineteen hundred
and sixteen."
This Act became law on February 5, 1917.
The provisions of the Act approved August 29, 1916, (the Jones Law) referred to therein, is as follows:
"That while this Act provides that the Philippine Government shall have the authority to enact a tariff law the trade
relations between the islands and the United States shall continue to be governed exclusively by laws of the
Congress of the United States: Provided, That tariff acts or acts amendatory to the tariff of the Philippine Islands
shall not become law until they shall receive the approval of the President of the United States, nor shall any act of
the Philippine Legislature affecting immigration or the currency or coinage laws of the Philippines become a law
until it has been approved by the President of the United States: Provided further, That the President shall approve
or disapprove any act mentioned in the foregoing proviso within six months from and after its enactment and
submission for his approval, and if not disapproved within such time it shall become a law the same as if it had
been specifically approved." (Sec. 10, italics ours.)
Prior to the enactment of the Immigration Act, the Philippine Legislature had provided in the Administrative Code
of 1916, as follows:
"A subject of a foreign power residing in the Philippine Islands shall not be deported, expelled or excluded from
said Islands or repatriated to his own country by the Governor-General except upon prior investigation, conducted
by said Executive or his authorized agent, of the ground upon which such action is contemplated. In such case the
person concerned shall be informed of the charge or charges against him and he shall be allowed not less than three
days for the preparation of his defense. He shall also have the right to be heard by himself or. counsel, to produce
witnesses in his own behalf, and to cross-examine the opposing witnesses." (Sec. 83.)
This provision of the Code of 1916 was repealed and re-enacted in identical terms, as section 69 of the
Administrative Code of 1917, by the Philippine Legislature on March 10, 1917, that is to say, subsequent to the
date when the Immigration Act became law over the veto of the President.
The Administrative Code of 1917 was approved by the President on October 1, 1917.
As we have just said, we are of opinion that the extension of the Immigration Act of 1917 to the Philippine Islands
has no bearing on the question of the power of the Philippine Government to deport or expel aliens from these
islands for other reasons than those mentioned in that Act; and that the right of the petitioner to remain under that
Act "cannot prevail over his removal as an act of state" of the Philippine Government. But, assuming for the sake
of argument, that we are in error in this regard, and that the provisions of section 83 of the Code of 1916 were
abrogated or repealed, in whole or in part by the extention of the Immigration Act of 1917 to the Philippine Islands,
we are satisfied that the Immigration Act itself must be held to have been superseded (under authority of the above
cited provisions of the Act itself) to precisely the like extent, by the reenactment of the provisions of the former
code, in identical terms, as section 69 of the Administrative Code of 1917, with the approval of the President of the
United States. If it be true that the provisions of section 83 of the Administrative Code of 1916 were "affected" by
the enactment of the Act of Congress, it must also be true that the provisions of the Act of Congress were
"affected" to a like extent by the enactment of section 69 of the Administrative Code of 1917 with the approval of
the President of the United States. It follows that the authority which was conferred by the Legislature upon the
Governor-General under the terms of section 83 of the Administrative Code 1916 was in like manner conferred
upon him under the terms of section 69 of the Administrative Code of 1917, unaffected by the provisions of the
Immigration Act from and after the day upon which that code received the approval of the President.
The specious suggestion that section 69 of the Administrative Code of 1917 was intended to furnish, or that it
should be held to furnish merely a set of regulations for the enforcement of the Immigration Act of that year (Act
of Congress of February 5, 1917) is manifestly at variance with the legislative history of this statute, which is a
reenactment in identical terms of section 83 of the Administrative Code of 1916, the latter statute incorporating and
continuing in force, with some slight amendments, the provisions of Act No. 2113 approved February 1, 1912.
The last contention made as to the lack of power in the Governor-General which need be noticed may be stated as
follows:
Conceding that at the time when the Tiaco vs. Forbes decision was rendered by the Supreme Court of the United
States, the Philippine Government had power to deport aliens as an act of state; and conceding that neither the
Jones Law (Act of August 29, 1916), nor the Immigration Act of 1917, have had the effect of depriving the
Philippine Government of that power, so that it continues in existence to this day; nevertheless, this case is to be
distinguished from the Tiaco vs. Forbes case, in that the Act of the Philippine Legislature (No. 1986) enacted April
19, 1910, approving, ratifying and affirming the action of the Governor-General in the former case, was equivalent
to an express authorization of the former deportation by the legislature whereas, as it is claimed, there is no act of
the Philippine Legislature authorizing the Governor-General to order the deportation in the instant case. It is urged
that neither section 69 of the Administrative Code of 1917, nor section 83 of the Administrative Code of 1916, nor
Act No. 2113 of the Philippine Legislature conferred or purported to confer any such authority upon the Governor-
General of the Philippine Islands.
It will readily be seen that this contention calls upon us for a construction of the meaning and effect of our local
statutes, unaffected by any question as to the relation of these statutes to congressional legislation or the provisions
of the Constitution of the United States.
We are of opinion that by the enactment of the series of statutes just cited, the Philippine Legislature conferred
upon the Governor-General authority to deport subjects of foreign powers, as an act of state, "upon prior
investigation," conducted in the manner indicated in section 69 of the Administrative Code of 1917.
As we have already indicated, this court was called upon, in the case of Chan Yick Sam vs. Prosecuting Attorney of
Manila, decided October 1, 1915 (31 Phil. Rep., 560), to consider the meaning and effect of the provisions of Act
No. 2113, enacted February 1, 1912, and it was there held that this Act furnished full and lawful authority to the
Governor-General to proceed to deport a foreigner.
The syllabus of that decision, prepared by the writer of the opinion, is as follows:
"Held: Under the facts stated in the opinion, that the prosecuting attorney of the city of Manila, in compliance with
an order of the Governor-General, has, in accordance with Act No. 2113, the authority to examine witnesses
concerning certain charges against aliens who are suspected of inciting the perpetration of certain acts against the
safety, welfare, and peace of the Chinese community in the city of Manila and of being persons subject to
deportation. (Forbes vs. Chuoco Tiaco and Crossfield, 16 Phil. Rep., 534; 228 U.S., 549.)"
In that case, which arose after the Tiaco vs. Forbes case had been decided by the Supreme Court of the United
States, this court sustained a ruling of the Court of First Instance of Manila denying a writ of prohibition against
the maintenance of deportation proceedings instituted under and by authority of Act No. 2113, and held that the act
conferred the necessary authority upon the Governor-General and his authorized agents to institute and maintain
such deportation proceedings.
It should be a sufficient answer to the contentions of counsel as to the absence of legislative authority to deport the
petitioner, to refer to our ruling in the case just cited; but Act No. 2113 having been superseded and incorporated in
slightly amended form in the Administrative Codes, and the argument in favor of the grant of power having been
strongly reenforced thereby, it may not be amiss to reconsider the whole question as raised in the instant case. To
this end it will be well to review the whole course of local legislation on this subject considered in relation to the
decisions of the courts with reference thereto.
Act No. 1986 of the Philippine Legislature, enacted April 19, 1910, is as follows:
"AN ACT CONFIRMING THE ACTION OF THE GOVERNOR-GENERAL IN DEPORTING FROM THE
PHILIPPINE ISLANDS, BY REQUEST OF THE IMPERIAL CHINESE CONSUL-GENERAL, ON AUGUST
NINETEENTH, NINETEEN HUNDRED AND NINE, CERTAIN PERSONS OF CHINESE NATIONALITY.
"Whereas the Governor-General has recently, at the request of the representative of the Chinese Government, and
in the exercise of authority vested in him by law, authorized the deportation from the Philippine Islands of twelve
alien Chinese, subjects of the Emperor of China, after careful investigation, and upon being convinced, by the
result of said investigation, that the presence of the said individuals in the Philippine Islands might result in serious
harm to the Chinese colony and constitute a serious danger to the public tranquility and welfare; and
"Whereas, the Governor-General has sent a message to the Legislature, setting forth the facts in regard to the
matter, therefore,
"By authority of the United States, be it enacted by the Philippine Legislature, that:
"Section 1. The action of the Governor-General in deporting from the Philippine Islands, at the request of the
Imperial Chinese Consul-General, on or about the nineteenth day of August, nineteen hundred and nine, the twelve
persons of the Chinese race and subjects of the Emperor of China, is hereby approved, ratified, confirmed, and in
all respects declared legal, and not subject to question or review.
"Sec. 2. The public good requiring the speedy enactment of this bill, the same shall take effect on its pasage, in
accordance with section one of Act Numbered Nineteen hundred and forty-five of the Philippine Legislature,
entitled 'An Act providing the time at which all Acts of the Philippine Legislature shall take effect.' "
This statute was enacted a few weeks after civil actions for damages had been instituted by some of the Chinese
deportees against the Governor-General and the police officers who executed his deportation order. Its evident
purpose was to cure any defect which might be found to exist in the authority of the Governor-General in the
premises; and although it expressly recited in its preamble that he had ordered the deportation "in the exercise of
authority vested in him by law," it is very clear that it was felt that the contentions of his counsel as to the legality
of the deportation order would be strengthened by an express ratification of the order, which, as was later declared
by the Supreme Court of the United States, had the effect of an express grant of power by the Legislature.
From the message of the Governor-General and the published reports of the legislative and judicial proceedings
incident to the deportation of Chuoco Tiaco, it appears that sharp differences of opinion arose at that time as to the
power of the Philippine Government to deport aliens; that grave doubts existed in the minds of many of the
members of the legislature as to whether the Governor-General could exercise the power by virtue of his office
alone, without legislative sanction or authority; and that conflicting views were entertained by some of the
members of the legislative bodies and the then Chief Executive as to whether the Legislature had authority to limit,
restrict, or regulate the exercise of this power.
Two years later, evidently as the outcome of the discussion of the Chuoco Tiaco deportation proceedings, the
geneneral subject of deportation and repatriation of foreigners was dealt with by the Philippine Legislature in Act
No. 2113, enacted February 1, 1912, which is as follows:
"AN ACT REGULATING THE AUTHORITY OF THE GOVERNOR-GENERAL OF THE PHILIPPINE
ISLANDS TO DEPORT, EXCLUDE, EXPEL, OR REPATRIATE FOREIGNERS.
"Whereas it has been decided that the Governor-General of the Philippine Islands has authority to deport, expel,
exclude, or repatriate foreigners, by due process of law;
"Whereas there is no law at present in the Philippine Islands which determines or defines such, process of law;
"Whereas it is necessary and advisable for the individual security of all residents of these Islands clearly to fix said
process of Law: Now, therefore,
"By authority of the United States, be it enacted by the Philippine Legislature, that:
"Section 1. Hereafter the Governor-General of the Philippine Islands may not deport, expel, exclude, or repatriate
from said Islands any foreigners residing therein without prior investigation made by said Executive or his
authorized agents, in which the person or persons whose deportation, expulsion, exclusion, or repatriation is
contemplated, and their counsel and witnesses shall be given a hearing. Such persons shall be informed of any
charges which there may be against them, and shall be granted a period of time not less than three days to prepare
their defense and shall be given an opportunity to cross-examine the witnesses for the prosecution: Provided, That
this Act shall not be construed as authorizing the extrañamiento, destierro, deportation, or any other form of
expulsion from the Islands of Filipinos.
"Sec. 2. All Acts and legal provisions legally incompatible herewith are hereby repealed.
"SEC. 3. The public good requiring the speedy enactment of this bill, the same shall take effect on its passage in
accordance with section one of Act Numbered Nineteen hundred and forty-five of the Philippine Legislature."
A year later the Supreme Court of the United States in the Tiaco vs. Forbes case, decided May 5, 1913, set all
doubts at rest as to the power of the Philippine Government to deport aliens as an act of state; and, reserving
opinion as to whether the Governor-General could exercise the power "by virtue of his office alone," made it clear
that the Philippine Legislature and the Governor-General, acting "under their combined powers," had authority to
deport aliens as an act of state; and that "the very ground of the power in the necessities of public welfare shows
that it may have to be exercised in a summary way through executive officers."
Less than six months after the promulgation of the decision in the Tiaco vs. Forbes case, this court, citing and
relying upon that decision, held in the Chan Yick Sam case (31 Phil. Rep., 560), that the Governor-General had
authority under the above cited Act No. 2113, to institute and maintain deportation proceedings against a foreigner
in accord with its provisions.
On February 24, 1916, the Philippine Legislature enacted the Administrative Code of that year, and on March 10,
1917, it enacted the Administrative Code now in force, substantially incorporating therein the provisions of the
former code, with such amendments and additions as were deemed necessary and expedient, as the result of the
enactment of the Jones Law (Act of August 29, 1916), providing for a more autonomous government for the
Philippine Islands.
Section 83 of the Code of 1916, and 69 of the Code of 1917 are identical, and incorporate into those codes the
provisions of Act No. 2113, with the omission of the title and preamble and some slight changes in the body of the
Act.
Section 69 of the Code of 1917 is a subdivision of article II, chapter IV, title II, which treats of "Particular powers
and duties of the Governor-General," itself a subdivision of Book I which treats of the "Organization, powers, and
general administration of the Philippine Government."
This section is as follows:
"Deportation of subject of foreign power. A subject of a foreign power residing in the Philippine Islands shall not
be deported, expelled, or excluded from said Islands or repatriated to his own country by the Governor-General
except upon prior investigation, conducted by said Executive or his authorized agent, of the ground upon which
such action is contemplated. In such case the person concerned shall be informed of the charge or charges against
him and he shall be allowed not less than three days for the preparation of his defense. He shall also have the right
to be heard by himself or counsel, to produce witnesses in his own behalf, and to cross-examine the opposing
witnesses."
Section 3 of the Code of 1917 provides as follows:
"Relation of Administrative Code to prior laws. Such provisions of this Code as incorporate prior laws shall be
deemed to be made in continuation thereof and to be in the nature of amendments thereto, without prejudice to any
right already accrued."
We think that the authority of the Governor-General to deport, expel, exclude or repatriate subjects of foreign
powers residing in the Philippine Islands, as an act of state, upon prior investigation, is clearly derivable from the
express terms of this statute, having in mind its context and relative position in the Code; its antecedents; the whole
course of local legislation with relation to the matter of deportation of aliens; and the acquiescence of the legislator
in the construction placed upon Act No. 2113 by this court in the Chan Yick Sam case (supra) and in the
assumption by the Chief Executive of authority thereunder, of both of which he had notice when again and yet
again he incorporated the provisions of Act No. 2113 in the Administrative Codes.
It is urged that, read by itself, section 69 of the Code of 1917, like its predecessors, Act No. 2113 and section 83 of
the Code of 1916, which it continues in force with some amendments, is a purely adjective or procedural statute;
that it contains no express grant of authority; and that it purports merely to regulate the exercise by the Governor-
General of authority to deport, as an act of state.
We are of opinion, however, that while it is doubtless true that the second paragraph of this section relates wholly.
to procedure, the first paragraph not merely regulates and controls the power of the Governor-General, but,
certainly. by plain implication, and as we think in express terms, confers authority in deportation proceedings,
when they are had upon prior investigation, and conducted in the manner and form prescribed in this section.
The somewhat unusual phrasing of the language of Act No. 2113 quite clearly reflects the doubts and uncertainties
then existing as to the source, the ultimate depositary, and even the existence of power in the Philippine
Government to deport aliens as an act of state. But it is not of vital importance whether the members of the
Legislature were, or were not, correctly advised as to their power in the premises, or the source from which it is
derived. The real question is whether legislative intent to concede the power to the Governor-General and to assert
merely their own power to regulate its exercise, finds expression in the language of the statute. We entertain no
doubt that if not expressly, then by plain implication, the Governor-General was authorized under the terms of the
first paragraph [section] of the statute to deport aliens, upon investigation conducted in the manner prescribed
therein.
That the legislator himself understood that this paragraph contained a grant of authority, express or implied, is quite
clearly indicated by the proviso, which expressly declares that "this Act shall not be construed as authorizing" the
deportation or expulsion from the Islands of Filipinos: evidently intended to foreclose the possibility that the word
foreigners, used in a statute enacted in the English language under American sovereignty might be construed to
include Filipinos.
It is true that this statute purported to be an act regulating the authority of the Governor-General to deport
foreigners, and that the preamble sets forth that "it had been decided" that the Governor-General had authority to
deport aliens by due process of law. But it will be seen that in exercising the right tacitly assumed by the legislator
in the other paragraphs of the preamble, to "determine," "define," and "fix" such process of law, he clearly and
explicity specified in the body of the act itself the instances in which he consented to the exercise of such authority
as well as those in which he forbade its exercise.
The cautious phrasing of the paragraph of the preamble which declared that "it has been decided that the Governor-
General has authority to deport foreigners by due process of law" discloses that the lawmakers desired to reserve
their own views on that subject; and we think that a critical examination of the whole statute clearly discloses the
intention of the lawmakers to assert the right to regulate so as to forbid arbitrary deportations and at the same time
to concede the right to deport foreigners upon prior investigation, coupled, however, with an express declaration of
the legislative will to prohibit the deportation of Filipinos on any pretext whatever.
That which is plainly implied in the language of a statute is as much a part of it as that which is expressed.
(Sutherland on Statutory Construction, 2d. ed., p. 9236.)
If, however, the peculiar phrasing of Act No. 2113 with its preamble, left any real ground for uncertainty as to the
intention of the legislator to concede a regulated power to deport aliens, no such doubt arises as to the legislative
intent in the enactment of the provisions touching the deportation of aliens in the administrative codes.
Omitting the title and the preamble, the provisions of Act No. 2113, with some slight but significant amendments
were included among the provisions of these carefully prepared administrative codes defining and delimiting the
jurisdiction and distribution of powers of government, and they are to be found in the chapters of those codes
which set forth "the particular powers and duties of the Governor-General."
Prior to the enactment of these codes the Supreme Court of the United States had dealt with the subject in the Tiaco
vs. Forbes case, and this court had construed Act No. 2113 in the Chan Yick Sam case. These decisions and the
lapse of time had clarified the atmosphere; and the Legislature when it again undertook to deal with the subject of
deportation of foreigners, as an act of state, under the section title of "Deportation of subject of foreign power,"
instead of directing its prohibition against the Governor-General himself, as in the old statute wherein it provided
that the "Governor-General may not deport foreigners except, etc.", directed its prohibition against deportations of
subjects of a foreign power by the Governor-General except upon prior investigation, etc. The modification in the
language is slight but significant, because it suggests, first that the legislator felt and knew that he was dealing with
an established practice, sanctioned by the courts; and, second, that in the code provisions the legislator was not
merely regulating and controlling the practice, but consciously defining and delimiting the occasions upon which
the power to deport might, and upon which it might not be exercised by the Governor-General with legislative
authority.
The substitution of the words "subjects of a foreign power" in the code in place of the word "foreigner" in Act No.
2113, was intended, of course, to render unnecessary the proviso in the Act expressly denying a grant of authority
to deport Filipinos, by the use of descriptive words in the grant of authority which could not be construed, under
any possible circumstances or in any language, to include natives of the Islands.
Examined with relation to the context, and the express purpose and object of the codification of the laws defining
and delimiting the powers of Government in the Philippine Islands, we are of opinion that the ordinary and usual
interpretation which should be placed upon the language of section 69 of the Administrative Code of 1917, and the
application thereto of the ordinary rules of grammatical construction, must be held to sustain the contention of the
Attorney-General that it was intended to confer and that it does in fact confer a regulated authority upon the
Governor-General in the matter of deportation of aliens.
Finally, we think that the acquiescense of the legislator in the interpretation placed upon the statute by the courts,
and in the assumption of authority thereunder by the Governor-General, operated in itself as a grant of such power.
The Philippine Legislature had notice prior to the enactment of Act No. 1986 in the year 1910, that the Governor-
General had asserted and exercised the power to deport aliens as an act of state. Both the Legislature, and the
special tyoard of experienced lawyers and judges who prepared the Administrative Codes of 1916 and 1917, must
be presumed to have had notice that thereafter, the Governor-General again asserted the right to exercise that
ppwer under and by virtue of the authority contained in the provisions of Act No. 2113 approved February 1, 1912.
The proceedings in one such case are set out at length in the reports of our decision in the case of Chan Yick Sam,
promulgated October 1, 1915, and reported in the weekly Official Gazette[2] and in 31 Phil. Rep., 560. In that case,
as we have seen, this court expressly recognized and unanimously sustained the authority of the Governor-General
to maintain these proceedings under and by virtue of the statute (Act No. 2113). And yet, upon two separate
occasions thereafter, the provisions of that statute were reenacted with some slight amendments which in no wise
affected the expression of the legislative will touching the exercise of the power to deport aliens by the Chief
Executive.
We think that if there ever was any ground for doubt as to the legislative intent to concede authority to the
Governor-General by the enactment of Act No. 2113, it was swept away by the reenactment of its provisions in the
administrative codes under the circumstances just indicated; and that the Philippine Legislature must be held to
have acquiesced in, and consented to the continuance of the practice long ere this. (Cf. Citations from Sutherland
on Statutory Construction [supra].)
In the case of U. S. vs. Midwest Oil Company (35 Sup. Ct. Rep., 309) :
"The power of the President to make certain land reservations was questioned. It appeared that the President or the
Executive Department of the Government claimed the authority to make such reservations without any statutory
grant. It also appeared that Congress had notice of this claim of authority and did not repudiate it; the Supreme
Court of the United States held that 'Its silence was acquiescence. Its acquiescence was equivalent to consent to
continue the practice until the power was revoked by some subsequent action by Congress.' "
In our consideration of the case thus far, we have rested our conclusions strictly on the doctrine of the decision of
the Supreme Court of the United States in the Tiaco vs. Forbes case as we understand it, because in this case as in
that case, we believe that the concession or grant of authority to the Governor-General by the Philippine
Legislature validates the deportation of the petitioner, as an act done under their combined powers, whether or not
power to deport aliens is vested in the Governor-General "by virtue of his office alone." It would seem that we
might stop here, but in view of the marked divergence of opinion which has developed in the discussion of this
case as to whether the language of the local statutes sustains a ruling that the Philippine Legislature has, in fact,
conferred authority upon the Governor-General in the premises, it may be proper to indicate that we think that an
examination of the history of the office of the Chief Executive in these Islands under American sovereignty will
disclose that, until and unless he is deprived of such authority by some act of Congress or of the Philippine
Legislature, the power of the Philippine Government to deport aliens as an act of state is vested in the Governor-
General by virtue of his office, subject only to the regulations prescribed in section 69 of the Administrative Code
of 1917, or by future legislation on the subject.
We incline to the belief that authority to control, limit, restrict, and perhaps even to prohibit the exercise by the
Governor-General of this power, by appropriate legislation, was conferred upon the Philippine Legislature, the
elected representatives of the people of the Islands, under the terms of the Jones Law (Act of August 29, 1916),
providing a more autonomous form of government for the people of the Philippine Islands. We think, furthermore,
that the enactment of that statute furnishes a sufficient grant of authority to the Philippine Legislature to provide for
the exercise of the power of the Philippine Government to deport aliens through such instrumentalities, and under
such appropriate regulations, as it may deem proper to prescribe; and to ratify, confirm, or concede authority for
the exercise of such power in the Chief Executive. Indeed, that body has heretofore exercise legislative power to
confer jurisdiction upon the courts to order the deportation of aliens upon a second conviction of a violation of the
Opium Law. We are disposed also to think that such power was vested in the Philippine Legislature prior to the
enactment of the Jones Law. But we are well satisfied, also, that under American sovereignty, the essentially civil
power to deport aliens as an act of state was originally vested in the first Civil Governor by virtue of the
presidential orders hereinafter cited, affirmed and ratified by the Congress of the United States; and that it has
continued in the office of the Chief Executive, the Governor-General, ever since, except in so far as his power has
been restricted, limited or controlled by the various acts of the Philippine Legislature to which reference has
already been made.
We find nothing in the history of the legislative relations of the Philippine Islands and the United States which
would indicate that the power, which undoubtedly was vested in the first Civil Governor, has been withdrawn from
any of his successors. Doubtless the power to legislate upon the subject was conferred upon the Philippine
Legislature under the Jones Law; but there is nothing in that act to indicate the intention of Congress by its
enactment and without further legislation, local or congressional, to abrogate the regulated system then in force for
the exercise of the power to deport aliens as an act of state, and to deprive the Governor-General of the power
vested in him prior to its enactment.
Our rulings on the other branch of the case necessitating the denial of the petitioner's prayer for discharge under the
writ, and our time being extremely limited, we may not pursue the inquiry further. We must therefore content
ourselves with a reference to the President's Instructions to the Commission of April 7, 1900; the Executive Order
of the President of June 21, 1901; the Spooner Amendment of the Act of Congress of March 2, 1901; section 1 of
the Act of Congress of July 1, 1902; the Act of Congress of August 29, 1916, and U. S. vs. Bull, 15 Phil. Rep., 7.
The Spooner Amendment found in the Act of Congress of March 2, 1901, is as follows:
"All military, civil and judicial powers necessary to govern the Philippine Islands, acquired from Spain by the
treaties concluded at Paris on the tenth day of December, eighteen hundred and ninety-eight, and at Washington on
the seventh day of November, nineteen hundred, shall, until otherwise provided by Congress, be vested in such
person or persons, and shall be exercised in such manner as the President of the United States shall direct, for the
establishment of civil government and for maintaining and protecting the inhabitants of said Islands in the free
enjoyment of their liberty, property, and religion." (31 Stat. at L., 910.)
The order of the President of June 21, 1901, appointing a Civil Governor is as follows:
"On and after the 4th day of July, 1901, until it shall be otherwise ordered, the President of the Philippine
Commission will exercise the executive authority in all civil affairs in the government of the Philippine Islands
heretofore exercised in such affairs by the Military Governor of the Philippines, and to that end the Hon. William
H. Taft, President of said Commission, is hereby appointed Civil Governor of the Philippine Islands. Such
executive authority will be exercised under, and in conformity to, the instructions to the Philippine Commissioners,
dated April 7, 1900, and subject to the approval and control of the Secretary of War of the United States."
Section 1 of the Act of Congress of July 1, 1902 (Philippine Bill) is, in part, as follows:
"Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,
That the action of the President of the United States in creating the Philippine Commission and authorizing said
Commission to exercise the powers of government to the extent and in the manner and form and subject to the
regulation and control set forth in the instructions of the President to the Philippine Commission, dated April
seventh, nineteen hundred, and in creating the offices of Civil Governor and Vice-Civil Governor of the Philippine
Islands, and authorizing the said Civil Governor to exercise the powers of the Government to the extent and in the
manner and form set forth in the executive order dated June twenty-first, nineteen hundred and one, * * * is hereby
approved, ratified, and confirmed, and until otherwise provided by law the said Islands shall continue to be
governed as thereby and herein provided, * * *."
Nevertheless, one objection to the theory that power to deport aliens is vested in the Governor-General by virtue of
his office alone, under the terms of the above cited congressional legislation; and that the Chief Executive of the
Philippine Islands may lawfully exercise that power, subject to regulation by Congress or the Philippine
Legislature, until and unless he is deprived of authority by Act of Congress or the Philippine Legislature, deserves
some attention. It has been suggested that the power to deport aliens as an act of state, which was undoubtedly
included among the powers which the Military Governor was authorized to exercise after the occupation of the
Islands by the armed forces of the United States, should not be held to have vested in the first Civil Governor and
his successors in office by virtue of the executive orders of the President, the Spooner Amendment and the various
acts of Congress organizing the Philippine Government, because it would be unreasonable to suppose that it was
the intention of Congress to provide for the transfer of purely military powers to a civil executive; and because in
no event would powers which had their origin wholly in military necessity survive the complete disappearance of
the military situation creating the necessity. But these contentions are manifestly based on the erroneous premise
that the power to deport aliens as an act of state which was exercised by the commander-in-chief of the military
forces in occupied territory, was necessarily a purely military power similar in kind and origin to the power, for
example, which he exercised to deport natives of the Islands or citizens of the United States.
We readily agree that it would be unreasonable to suppose that the power to deport any person whatever, whether a
citizen of the United States or not, whose presence appeared to constitute an obstacle in the path of the military
forces of the United States in the Philippines, was transmitted from the Military Governor to the Civil Governor
and his successors in office through a period of nearly two decades of profound peace. But the power to deport
aliens is not derived exclusively or necessarily from military necessity. Indeed, its exercise is in many, if not in
most instances, a function of the civil and political department of the Government, properly vested in the civil
authorities in time of war as in time of peace, unless taken over by the military commander by the assumption of
civil as well as military powers in territory under his command. (Cf. Moore's International Law Digest, vol. IV, sec.
550 et seq.)
In the case of Fok Yo vs. U. S. ([1902], 185 U. S., 296) the Supreme Court of the United States said:
"The doctrine is firmly established that the power to exclude or expel aliens is vested in the political department of
the government, to be regulated by treaty or by Act of Congress and to be executed by the executive authority
according to such regulations, * * *."
We are of opinion that in the Philippine Islands the doctrine which should be established is that the power to
exclude or expel aliens is vested in the political department of the government, to be regulated by treaty, or Act of
Congress of the United States, or by Act of the Philippine Legislature; and, under the laws as they now stand on the
statute books, to be executed by the Governor-General, the supreme executive authority, according to such
regulations.
Although somewhat out of its logical order, we think we should add here some comment on an objection to our
rulings to which our attention was more especially directed, upon reading one of the dissenting opinions after the
foregoing had been completed. It is urged that not only was Congress lacking in power, under the Constitution, to
delegate undefined authority to deport aliens to the Philippine Government, but also that the Philippine Legislature
was lacking in constitutional authority to delegate such undefined authority to the Chief Executive of the Philippine
Islands.
These contentions would seem to be sufficiently disposed of by directing attention to the fact that the Supreme
Court of the United States has held, in the case of Tiaco vs. Forbes (supra), not only that Congress has the power so
to do, but that it did in fact delegate full power to the Philippine Government to deport aliens as an act of state; and,
further, that when the Governor-General does in fact deport an alien, by authority of an Act of the Philippine
Legislature, the deportation may properly be treated as an act of state, done under "the combined powers" of the
Philippine Legislature and the Governor-General.
It will be well, nevertheless, to examine this contention at greater length, on principle as well as on authority.
As is well said in a decision (Yick Wo vs. Hopkins, 118 U. S., 356) cited in one of the dissenting opinions in this
case, "It is, indeed, quite true, that there must always be lodged somewhere, and in some person or body, the
authority of final decision."
But despite this manifest truism, it is insistently contended that it is unconstitutional and contrary to the basic
principles of American sovereignty in these Islands to lodge in the hands of the Governor-General power to deport
aliens, unless the instances in which such power may be exercised are specifically designated and defined. It is said
that it is a useless and vain formality to require that "the alien shall be heard before he is expelled, if the expulsion
may take place regardless of what he may say," and that "the mere formality of a hearing is not in itself sufficient to
constitute due process of law."
As we understand these contentions, it is urged that even if it were admitted that Congress or the Philippine
Legislature may lawfully delegate power to deport aliens to the Chief Executive in certain specified and
enumerated instances, neither Congress nor the Philippine Legislature may lawfully delegate power, generally, in
all the instances in which they themselves may exercise such power. But what are the instances in which such
power may be delegated, and in what instances is it unconstitutional to delegate the power to deport? If power to
deport may be delegated in some instances, where is the constitutional or legal prohibition upon the delegation of
the power in all instances?
The truth is, of course, that the instances in which aliens may be deported as an act of state must be determined
upon recognized principles of international law; and that the Legislature, when it conferred a regulated power on
the Governor-General to deport aliens, upon prior investigation, in all instances in which the Government of the
Phillippines may deport aliens as an act of state, did not confer an arbitrary power to deport any alien upon "a mere
whim" as is suggested, but only such aliens as may properly and lawfully be deported under recognized rules of
international law.
While it is impossible to enumerate the cases wherein aliens may properly and lawfully be deported under
recognized rules of international law, it is not impossible to lay down "a rule of law defining the standard of
conduct for the violation of which the right of asylum which aliens enjoy under our laws is to be forfeited/1 Indeed
few rules of law are more firmly established both in international law and in American municipal law than that
every alien forfeits his right of asylum in the country in which he resides, in the absence of treaty provisions to the
contrary, when his conduct or his mode of life renders his presence there inimical to the public interests. As was
said by a standard authority on International Law "Some writers have essayed to enumerate the legitimate causes of
expulsion. The effort is useless. The reasons may be summed .up and condensed in a single word: The public
interest of the State. Bluntschli wished to deny to states the right of expulsion but he was obliged to acknowledge
that aliens might be expelled by a simple administrative measure." (Bonfils, Manual du Droit Int. Public, sec. 442;
Moore's International Law Digest, Vol. IV, p. 68.)
It will be seen then, that when the Congress of the United States and the Philippine Legislature conferred power on
the Governor-General to deport aliens upon prior investigation, they did not confer arbitrary power to deport aliens
at his mere whim; his authority being limited to cases wherein, after due investigation, the conduct or mode of life
of the persons whose deportation is contemplated is found i& be inimical to the public interests. It needs no
argument nor citation of authorities to show that it was within the power of Congress and the Philippine Legislature
to confer jurisdiction upon the Governor-General to adjudicate the facts upon which such deportations must be
predicated; and to make his judgments in such cases as final and as conclusive as if like jurisdiction had been
conferred upon the ordinary courts of law.
Let it be noted that we are not discussing, at this time, the political wisdom of conferring such powers on the Chief
Executive. It is not within the province of the courts to pass upon the wisdom or unwisdom of legislative
enactments. The question is not whether Congress and the Philippine Legislature should have delegated authority
of this kind, but whether such authority could be delegated under the laws and the Constitution of the United
States. No reason, other than those of mere political expediency, have been suggested for denying the power of the
Legislature to confer such authority; and yet as was said by the Supreme Court of the United States in the Tiaco vs.
Forbes case (supra) "The very ground of the power in the necessities of the public welfare shows that it may have
to be exercised in a summary way through executive officers."
Moreover, we are dealing in the present case with a specific instance of the exercise of the power to deport,
wherein the ground upon which the deportation is contemplated is that the petitioner is "an undesirable alien,
whose continued presence in the Islands is a menace to the peace and safety of the community," as appears from
the deportation order itself, and the charges upon which the investigation was held.
If the petitioner is in fact what he has been adjudged to be after a fair and impartial hearing, no one can doubt,
under present conditions, that this is a proper instance for the exercise by the Governor-General of the delegated
authority to deport aliens as an act of state; and even if the grant of power should be held to be ineffective as an
unrestricted and unlimited delegation of power to deport aliens, it must be held to be a sufficient delegation of a
regulated power to deport aliens upon grounds such as those upon which the deportation of the petitioner are based.
In eloquent and impassioned periods counsel for the petitioner urge us to order his discharge from detention, and
thus "conserve the sacred traditions of personal liberty maintained by the founders of the American Republic and
their English ancestors;" and we are told that to sustain the regulated power of the Governor-General to deport
aliens from the Philippine Islands as an act of state, is to challenge the principles and authority of Magna Charta,
the Constitution of the United States, the Philippine Bill of Rights, and to set ourselves against all the historic
precedents established by the Anglo-Saxon race through centuries of toil, and blood, and oppression.
But in answer to all this we need only say in addition to what has been said already:
1. That the Supreme Court of the United States was not deterred by such considerations from upholding the power
of the Governor-General in the Tiaco vs. Forbes case (supra) a few years ago, when it said that the summary
deportation of the plaintiffs in that case did not deprive them of liberty "without due process of law;" and that "As
Congress is not prevented (from deporting aliens) by the Constitution, the Philippine Government cannot be
prevented by the Philippine Bill of Rights alone."
2. That the founders of the American Republic, themselves, saw nothing in the Constitution to deter them from
placing the Alien and Sedition Laws upon the statute books, when the need therefor arose a few years after that
great instrument was adopted (1798). It will be remembered that it was the members of the Federalist party, many
of whom had taken a leading part in the constitutional convention, who were responsible for the enactment of the
statute which empowered the President to deport all aliens whom he should judge dangerous to the peace and
safety of the community. And though, as a result of popular agitation, this statute was not reenacted after it had
expired under its own terms, that fact furnishes no ground for argument either for or against its constitutionality.
The statute never was judicially tested, and we have no authoritative judicial pronouncement as to its
constitutionality.
3. That the great English judges do not find in Magna Charta nor elsewhere in the British Constitution anything
which forbids the deportation of aliens by executive authority in the colonies of the Empire, even in the great self-
governing colonies such as Canada. "Eminent English judges, sitting in the Judicial Committee of the Privy
Council, have gone very far in supporting the exclusion or expulsion, by the executive authority of a colony of
aliens having no absolute right to enter its territory or to remain therein." (In re Adam, 1 Moore, P. C, 460, quoted
in Fong Yue Ting vs. United States, 149 U. S., 698, 709.) "The Crown has power to exclude an alien and may
delegate that power to Canada." (Atty. Gen. vs. Cain, A, C, 542, reversing Re Gilhula, 10 Ont. L. Rep., 469.)
From what has been said it is clear that the prayer of the petitioner for discharge under the writ should be denied.
Let the appropriate order be entered, three days after the filing of this opinion, remanding the petitoner to the
custody of the chief of police of the city of Manila, with the costs of the proceedings against the petitioner; and ten
days thereafter let the record be filed with the archives of original proceedings in this court.
Arellano, C. J., Torres, Araullo, and Avanceña, JJ,, concur.
Johnson, J., with whom concur Street and Fisher, JJ., dissenting