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Opinion of the Court.

291 U.S.

excludes the Chinese (United States v. Wong Kim Ark, supra; 8 U.S.C. § 363), the Japanese (cases supra), the Hindus (United States v. Thind, supra), the American Indians (Ozawa v. United States, supra) and the Filipinos (Toyota v. United States, 268 U.S. 402), though Indians and Filipinos who have done military or naval service may be entitled to special privileges (8. U.S.C. $$ 3, 388). Nor is the range of the exclusion limited to persons of the full blood. The privilege of naturalization is denied to all who are not white (unless the applicants are of African nativity or African descent); and men are not white if the strain of colored blood in them is a half or a quarter, or, not improbably, even less, the governing test always (United States v. Thind, supra) being that of common understanding. Dean v. Commonwealth, 4 Gratt. (45 Va.) 541; Gentry v. McMinnis, 3 Dana (Ky.) 382; In re Camille, 6 Fed. 256; In re Young, 198 Fed. 715, 717; In re Lampitoe, 232 Fed. 382; In re Alverto, 198 Fed. 688; In re Knight, 171 Fed. 299; 2 Kent Comm. (12th ed.) 73, note. Cf. the decisions in the days of slavery: Gentry V. McMinnis, 3 Dana (Ky.) 382; Morrison v. White, 16 La. Ann. 100, 102; see Scott v. Raub, 88 Va. 721, 727–9; 14 S.E. 178.

The California Land Law must be read in the light of these rulings as to the effect of birth and race. Section 1 of the Act (Cal. Stat. 1923, p. 1020, amending Cal. Stat. 1921, p. lxxxiii) provides that all aliens eligible for citizenship may acquire and occupy real property to the same extent as citizens. Section 2 provides that aliens not eligible for citizenship may use and occupy real property to the extent prescribed by any treaty between the Government of the United States and the nation or country of which such alien is a citizen or subject, “and not

1 The opinions in Jeffries v. Ankeny, 11 Ohio 372, and Gray v. State, 4 id. 353, rest upon peculiar provisions of the Ohio Constitution.

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otherwise." There is a treaty between the United States and Japan (37 Stat. 1504) by which the Japanese may own or lease houses, manufactories, warehouses, and shops, and may lease land for residential and commercial purposes. The treaty does not confer a privilege to own or use land for the purposes of agriculture. Webb v. O'Brien, supra, p. 323; Frick v. Webb, 263 U.S. 326. Section 3 of the Act prescribes the rule applicable to the acquisition of shares in corporations organized by aliens for the occupation or use of land; $$ 4 and 5 prescribe the rule for alien trustees and guardians; SS 7, 8, and 9 provide for the escheat to the state of any interest in real property unlawfully acquired. Section 10 provides that “if two or more persons conspire to violate any of the provisions of this act they are punishable by imprisonment in the county jail or state penitentiary not exceeding two years or by a fine not exceeding five thousand dollars, or both.” This is the section under which the defendants have been convicted. There is nothing in the statute whereby unlawful occupation of land by an alien ineligible for citizenship is declared to be a crime unless the occupation has been acquired by force of a conspiracy

This court in Morrison v. California, 288 U.S. 591,2 passed upon a controversy as to the validity of $ 9b of the California Land Law, which, though akin to § 9a, has important elements of difference. This section (9b) provides in substance that when it has been proved that the defendant has been in the use or occupation of real property and when it has also been proved that he is a member of a race ineligible for citizenship under the naturalization laws of the United States, the defendant shall have

* The appeal was dismissed for the want of a substantial federal question upon a statement as to jurisdiction, and without argument of counsel,

Opinion of the Court.

291 U.S.

the burden of proving citizenship as a defense. We sustained that enactment when challenged as invalid under the Fourteenth Amendment of the federal constitution. The state had given evidence with reference to the defendant, the occupant of the land, that by reason of his race he was ineligible to be made a citizen. With this evidence present, we held that the burden was his to show that by reason of his birth he was a citizen already, and thus to bring himself within a rule which has the effect of an exception. In the vast majority of cases, he could do this without trouble if his claim of citizenship was honest. The People, on the other hand, if forced to disprove his claim, would be relatively helpless. In all likelihood his life history would be known only to himself and at times to relatives or intimates unwilling to speak against him.

The ruling was not novel. The decisions are manifold that within limits of reason and fairness the burden of proof may be lifted from the state in criminal prosecutions and cast on a defendant. The limits are in substance these, that the state shall have proved enough to make it just for the defendant to be required to repel what

* Sec. 9b. In any action or proceeding, civil or criminal, by the State of California, or the people thereof, under any of the provisions of this act, when the complaint, indictment or information, alleges the alienage and ineligibility to United States citizenship of any defendant, proof by the state, or the people thereof, of the acquisition, possession, enjoyment, use, cultivation, occupation or transferring of real property or any interest therein, or the having in whole or in part of the beneficial use thereof by such defendant, or of any such facts, and in addition proof that such defendant is a member of a race ineligible to citizenship under the naturalization laws of the United States, shall create a prima facie presumption of the ineligibility to citizenship of such defendant, and the burden of proving citizenship or eligibility to citizenship as a defense to any such action or proceeding shall thereupon devolve upon such defendant. Cal. Stats. 1927, c. 528,

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p. 881.

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has been proved with excuse or explanation, or at least that upon a balancing of convenience or of the opportunities for knowledge the shifting of the burden will be found to be an aid to the accuser without subjecting the accused to hardship or oppression. Cf. Wigmore, Evidence, Vol. 5, $$ 2486, 2512 and cases cited. Special reasons are at hand to make the change permissible when citizenship vel non is the issue to be determined. Citizenship is a privilege not due of common right. One who lays claim to it as his, and does this in justification or excuse of an act otherwise illegal, may fairly be called upon to prove his title good. In accord with that view are decisions of this court in proceedings under the acts of Congress for the deportation of aliens. A Chinaman by race resisted deportation on the ground that, though a Chinaman, he had been born in the United States. The ruling was that as to the place of birth the burden was upon the alien, and not upon the Government. The ruling also was that the imposition of that burden did not deprive the alien of his constitutional immunities. Chin Bak Kan v. United States, 186 U.S. 193, 200. inestimable heritage of citizenship is not to be conceded to those who seek to avail themselves of it under pressure of a particular exigency, without being able to show that it was ever possessed.” Ibid. See also: Ah How v. United States, 193 U.S. 65, 76; Christy v. Leong Don, 5 F. (20) 135. Cf. Ng Fung Ho v. White, 259 U.S. 276, 283. We adhered to that principle in Morrison v. California, supra. Upon that basis, we approved the ruling of the Supreme Court of California (People v. Osaki, 209 Cal. 169; 286 Pac. 1025) that § 9b of the Alien Land Law casting upon a Japanese defendant the burden of proving citizenship after proof of his race had been given by the state was not an impairment of his immunities under the federal constitution. No point was made in the statement of jurisdiction or the supporting brief that

" The Opinion of the Court.

291 U.S.

the crime was conspiracy and that one of the defendants belonged to the white race. The case was submitted as if both were Japanese.

The question is now as to $ 9a. Obviously there is a wide difference between the scope of the two sections. Possession of agricultural land by one not shown to be ineligible for citizenship is an act that carries with it not even a hint of criminality. To prove such possession without more is to take hardly a step forward in support of an indictment. No such probability of wrongdoing grows out of the naked fact of use or occupation as to awaken a belief that the user or occupier is guilty if he fails to come forward with excuse or explanation. Yee Hem v. United States, 268 U.S. 178, 183, 184; Luria v. United States, 231 U.S. 9, 25; Casey v. United States, 276 U.S. 413, 418; Mobile, J. K. & C. R. Co. v. Turnipseed, 219 U.S. 35, 42, 43; Bailey v. Alabama, 219 U.S. 219, 233, 238; Manley v. Georgia, 279 U.S. 1; People v. Cannon, 139 N.Y. 32. “The legislature may go a good way in raising [a presumption] or in changing the burden of proof, but there are limits.McFarland v. American Sugar Co., 241 U.S. 79, 86. What is proved must be so related to what is inferred in the case of a true presumption as to be at least a warning signal according to the teachings of experience. “It is not within the province of a legislature to declare an individual guilty or presumptively guilty of a crime.” McFarland v. American Sugar Co., supra; Bailey v. Alabama, supra; Manley v. Georgia, supra. There are, indeed,“ presumptions that are not evi

, dence in a proper sense but simply regulations of the burden of proof.Casey v. United States, supra. Even so, the occasions that justify regulations of the one order have a kinship, if nothing more, to those that justify the others. For a transfer of the burden, experience must teach that the evidence held to be inculpatory has at least a sinister significance (Yee Hem v. United States, supra; Casey v.

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