ernment, doing work that we believe should be done by the Federal Government itself but which so far has not been assumed by the Government.

In the second place, I have always been greatly interested in matters of legislation. I teach legislation, and have for many years been interested in the establishment of legislative drafting services, such as that in charge of Mr. Beaman.

So I was very much interested in this measure when I first saw it, and when I looked it over I felt it was not as perfect a measure as it might be. So I felt quite willing and agreed to say a word about it.

I think we are all at one in the desire to safeguard to the fullest extent the legitimate interests of the country, and I believe we also are agreed that those legitimate interests include a very careful regard for the principles of justice and right.

There is a difference, a natural difference, in the attitude of not only legislators, but of lawyers, toward those two phases. If a measure is drafted I think all the effort is put forward to make the measure as effective as possible for the particular public purpose which it serves, and there is a very general impression that the Constitution or general principles of law take care of that other aspect, which is equally important, which is intended to safeguard individual rights and the principles of justice. And looking over this bill I was very much impressed with this idea: That when lawyers look at a measure they ask themselves, is it constitutional or not? When they make up their mind, or when they have a Supreme Court decision, to the effect that it is constitutional, they think then it is right. It sometimes seems to me that a legislative body thinks it can wash its hands of the responsibility for a principle or rule of legislation if once the Supreme Court has put its O. K. upon it.

Let me illustrate that by one provision in this bill, and that is the provision which has no particular primary relation to the deportation of aliens, the provision of inflicting a fine upon the steamship companies that are instrumental in bringing the alien in. You know the Supreme Court about 15 years ago held that to be constitutional in the case of the Oceanic Steamship Co. against Stranahan, 208 U. S., and apparently that is to be made a permanent feature of this legislation.

I always regarded that provision as questionable. There is no need for it. The steamship companies, as a rule, are fully responsible, and to introduce into our legislation the principle of a bureaucratic fine seems to me contrary to the entire spirit of our legislation from way back. The provision is an isolated one in our law, and I regret to see it perpetuated.

I think it is conceded that a provision of this kind goes to the verge of what is constitutional, and when you go to the verge a slight misstep will be your undoing; and I believe that will happen in this bill, because you make provision for this fine in a mandatory manner if the alien is directed to be deported.

Now, you have put upon the alien a very severe burden of proof, and if he can not meet it, he has to be deported, and automatically the steamship is then fined. But the question is can you fine the steamship company on the basis of evidence which it itself can not meet? I am not sure about that; but I believe you may find ultimately that you

have a provision that will not work. In other words, a more conservative provision perhaps would have been more effective.

The CHAIRMAN. What is your suggestion about it?

Mr. FREUND. Simply have an appeal given to a court and simply preliminary fine as a matter of convenience; or have the fines inflicted, as they are in all other cases, by judicial proceeding. That is very simple. As I say, I think it is the only case on the statute books like this.

The CHAIRMAN. You refer to fines on steamship companies for bringing in inadmissible aliens?

Mr. FREUND. It is section 20. You see you do not provide for any hearing, the thing is quite automatic, and it is based upon a previous proceeding against the aliens, which may be all right against the alien, but which I doubt is all right against the steamship company.

The CHAIRMAN. Do you know in what manner that differs from the present law?

Mr. FREUND. It differs in this respect, that the present law is not quite as severe upon the alien as the proposed law; the burden. of proof, I think, is made more severe upon the alien than it ever was before, and as upon the inability to meet that burden of proof the fine automatically goes, a slightly different situation is presented from the situation presented before.

The CHAIRMAN. Now, you see, starting with subdivision (e) at the bottom of page 20, it says:

It shall be unlawful for any master, purser, person in charge, agents, owner, charterer, or consignee of any vessel to refuse or fail to receive or detain on board, and transport in the manner specified, and to the place designated, any alien ordered to be deported on such vessel in pursuance of law; or to fail to pay the costs imposed in pursuance of law in respect of any aliens; or, in bringing any alien to the United States, to make any charge for the return of such aliens or to take any security for the payment of such charge, or to take any consideration to be returned in case the alien is landed.

And so forth. If I remember the change is a bit more mandatory as to detaining alien seaman on vessels until the Federal Government shall have an opportunity to look them over. In other respects it follows present law. Now, the trouble we have had, Doctor, is with the arrival of stowaways, and on the Pacific coast with the arrival, for instance, of live Chinese in coffins. How can you stop those practices?

Mr. FREUND. The steamship companies, of course, would be liable for that fine, whether you have this particular proceeding or any other proceeding.

The CHAIRMAN. But if the door is open so that they can get off before the inspector can investigate, then where are you?

Mr. FREUND. That possibility of course exists under this act as well as any other. The only question I now present is that question-and it is purely an incidental question-of the constitutionality of that particular provision. I say the Supreme Court has sustained it, but I wondered how much further they might go in sustaining slight extensions of it, because I believe it is not desirable, unless absolutely necessary, to have these fines imposed without hearing, simply as an automatic administrative, mandatory provision.

Mr. DICKSTEIN. At this point, also without right of the subpoena of witnesses.

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Mr. FREUND. Yes, sir. It is an automatic matter. It seems to me deplorable to have that introduced. I have always regretted seeing that in our statute books. When I teach the subject I say this is a unique thing. I don't know how it got in the the statutes, but the Supreme Court has sustained it, and I say whenever you have a thing like that sustained by the Supreme Court a good many people say this must be right. I do not see why you could not accomplish exactly the same thing by a provision more in accordance with the traditions of our law.

Mr. SABATH. The reason this was originally inserted was because it was feared that the steamship companies, who had been charged with being part and parcel of this plan of bringing over people in violation of the law, due to conspiracy on the part of some of the employees it has been put in for the purpose of stopping the steamship companies using their influence with the departments and subjecting the Government to a great deal of cost in defending in fines that might be imposed, and thereby nullify the provision. That was the reason why it was originally put in.

Mr. FREUND. I wondered really whether it was worth that great departure, making that great departure from established practice. This is a point that is rather incidental.

Let me say a word about the burden of proof. The burden of proof has been put on the alien for some time and I suppose in some respects that may be proper. It is sometimes a great hardship, and I ask you to look at the burden of proof provision in this proposed act, which I do not believe has been changed, which makes it incumbent upon the alien to bring affirmative proof that certain disabilities-look at section 19, subdivision 5a, subdivision 5 on my bill, at page 11. It is section 19a, 5. Now, you put an affirmative burden proof on the alien. An alien becomes insane or develops a constitutional psychopathic inferiority, and he has to show affirmatively that that arose subsequent to his entry into the United States.

The CHAIRMAN. It would result in this: That if it is not proved. easily then the country from which he came will not take him back. That goes on all the time.

Mr. FREUND. I will have to speak of that later on in connection with the removal of the time limits. Of course under certain circumstances that may be a very grave injustice.

Now, see the special character of this entire deportation legislation. Deportation operates under certain circumstances as severely as any punishment could possibly operate. Yet it is not, as every lawyer knows, criminal punishment; and in addition the person subject to it is a person who is only one-half entitled to his constitutional rights. He is not entirely debarred from the privileges that belong to the citizens; but so far as the rules and principles of criminal procedure are concerned they do not apply to deportation. In consequence you have power to reverse the burden of proof, and you do it.

Now, that may be a matter of policy, but I think after all the matter of burden of proof in this case is not simply one of constitutional limitations but I think it is a great matter of justice, and I find it very difficult to persuade myself that you are really observing justice in this case, if you put upon a person who has been 10 years in this country, who in some way becomes afflicted, to show affirmatively that that affliction did not arise from causes after he

came into this country. It may be absolutely impossible to prove it, but all your provisions are mandatory. There is no choice, you have to deport him. That is a great injustice.

I feel that there is a considerable harm in this legislation that is criminal in effect and yet hot criminal in law. You have in every case of criminal prosecution and conviction the pardoning power, and we have always regarded that as essential to the administration of criminal justice; but the pardoning power does not apply in this case. We had a case in the Middle West not long ago in which some of us were appealed to. It was a case of a man who had been deported 8 or 9 years ago as a communist. He simply admitted it. He did not think it was a crime to be a communist, but they deported him. He was married and had four children. He lived in Indianapolis. I think he was a piano tuner by trade. They sent him back to Germany, his family of course remaining here. He made his way back to America through Mexico and joined his family. Now, you could hardly blame that man for doing most anything to rejoin his family. That was certainly not morally reprehensible. And yet, he had violated the law. We wanted to try to do something for him and every effort was made to do something for him. Everyone who knew him gave him the highest character, and the man who will take the trouble to go through all that was necessary under such circumstances to rejoin his family, certainly displayed some good qualities by that very act, and he had the sympathy of all who knew him.

I do not think the fact that he said he was a communist ought to bring about such a severe punishment. We know that that is largely idealism, perhaps foolishness to some extent. Great effort was made to get him a pardon for the offense he had committed and I suppose there would be no difficulty about that; but so far as deportation was concerned, there was no possibility that that man could stay in this country under the law.

The CHAIRMAN. What finally happened to him?

Mr. FREUND. I don't know. His friends were in great hopes that the felony sentence could be pardoned, but they said they could not do anything about the deportation, that that provision is mandatory and that the pardoning power does not apply.

The CHAIRMAN. What was his name?

Mr. FREUND. I think his name was Schedel.

Now, as long as you are concerned with this matter of deportation, in the matter of revising it, I wondered whether it would not be worth while to consider whether that should not be a question for revision; that there should be no way of dealing with it except by breaking the law seems to me a hardship, and it was one of the things that occurred to me when I saw that there was a movement to revise this measure, and I suggest for your consideration a revision of the proposed law in that respect.

The CHAIRMAN. In case there was a pardoning power given, where would you place that power, referring to subdivision 5

An alien, who, from causes not affirmatively shown to have arisen subsequent to entry into the United States, is an idiot, imbecile, feeble-minded person, epileptic, insane person, person of constitutional psychopathic inferiority, or person with chronic alcoholism-at any time after entry.

Where would you have the pardoning power?

Mr. FREUND. Of course you know that it is easier to criticize than to suggest.

The CHAIRMAN. We appreciate your criticisms.

Mr. FREUND. Before I make a constructive suggestion, I like to sit down with pen and paper and work it out carefully. However, let me state that when it comes to the offenses for which a person may be deported I find at least three which I think ought not to be dealt with in a mandatory manner. Those three are harboring an alien, concealing him, or assisting an alien to reenter.

Of course, it is not right, but when you consider that this operates upon close relatives of the man who may really humanely be excused, if I may use that word-I don't know that it is the proper word—but we understand that in many systems of criminal law they never punish a wife or close relative for harboring or concealing a criminal. It is regarded as a natural thing to do. Such a principle does not exist in our law, but in many systems of law that is something that is recognized.

Now, suppose Mrs. Schedel had assisted her husband. She was a citizen and could not be deported, but suppose she had been an alien, where the wife takes the nationality of her husband; she would have to be deported. It seems to me almost fantastic that she would have to be deported for a thing like that.

I also think it unfortunate that the provision of the deportation law that the person is to be taken into custody instead of being made for emergency is mad the rule. Why should there in every case be a provision for taking the alien into custody?

You now propose to provide for bail. You know you have no provision for bail at the present moment. A person has to go to one of these beautiful county jails that we know about until the matter is disposed of. That is proposed to be taken care of. But I wonder why it is taken care of only by provision of bail of a thousand dollars, when you know in many cases there is no need for bail whatever. There is no reason why a man should be put in jail at once. If you examine the old act of 1798, you will find that it provides in the first instance only for an order to leave. But for some reason or other, when deportation was reintroduced, I don't know what year it was, they put in "shall upon the warrant of the Secretary of Labor be taken into custody and deported." Those are the words. Then the Supreme Court read into the act in the Japanese immigrant case, in 189 United States, that under the Constitution of the United States that could not operate in the way it was written, but a hearing was required. The hearing, then, is due to the decision of the Supreme Court, but not to the statute. There is also something peculiar and quite unique here. You have a provision that the Secretary of Labor will get the evidence, but so far as I can see he is forbidden to take any evidence himself. inspector who must take the evidence.

The CHAIRMAN. Who is forbidden?

It is an

Mr. FREUND. The Secretary of Labor. It is the only case that I know in the entire legislation where a person charged solely with the responsibility for an adverse decision is prohibited by law from hearing evidence. I wondered why that was done, why it was necessary. Mr. VINCENT. He can send it back.

Mr. FREUND. Yes; but why should he be debarred from hearing witnesses himself, why should the law prohibit him from getting

evidence?