256

THE GREEN BAG

of certain sisters of charity and an agent of the hospital, to Arizona for the purpose of having them adopted by citizens of the territory. Upon their arrival the children were given in charge of Mexican half-breeds and Indians, who were wholly unfit to be intrusted with them, and who were of the lowest classes, illiterate, unacquainted with the English language, vicious, and in several in stances persons of notoriously bad character. Upon ascertaining the situation, the white residents were highly indignant, and forcibly took the children from the persons with whom they had been left, and adopted them into their own families. It seems that the hosiptal acted in good faith, and had been misled by the repre sentations made by the priest. The proceedings to recover the children were brought by the hos pital in an effort to undo the wrong which had been done, and to place the children in' other homes in the east, where they would be far re moved from the knowledge of their antecedents and the events which had made their arrival in Arizona notorious. In refusing to order the chil dren to be surrendered to the hospital authorities, the court feelingly said : ' ' We feel that it is for their best interests that no change be made in their custody, and that, if anywhere, here in the changing west, the land of opportunity and hope, these children, as they grow to manhood and womanhood, will have the fullest opportunity that it is possible for them to have to be judged, not upon the unfortunate condition of birth, but upon the record which they themselves shall make and the character they shall develop."

IMMIGRATION 'LAW. (REPEAL — CONSTRUC|,__H TION OP SAVING CLAUSE) U. S. C. C. A. 6xH CIRCUIT. The opinions of the various members of the court in the case of Lang et al v. United States, 133 Federal Reporter, 201, are a somewhat lu minous example of how different minds may reach very different conclusions from the same premises, depending on which component fact of the hypothesis appears to be the controlling one. The case turns upon the construction of the saving clause of the Immigration Act of March 3, 1903 (U. S. Comp. St. Supp. 1903, p. 183) which repealed Act March 3, 1875, c. 141 (U. S. Comp. St. 1901, p. 1286), and re-enacted it so as to make it apply to girls as well as women, and to attempts as well as completed acts. Section 28 of the Act of 1903 provided "that nothing contained in this act shall affect any prosecution, or other proceed ing, criminal or civil, begun under any existing act.or any acts hereby amended, but such prosecu

tions and other proceedings, criminal or civil, shall proceed as if this act had not been passed." Grosscup, circuit judge, founding his construc tion of the saving clause largely on a technical grammatical consideration of the meaning of the word "begun," concludes that it refers not only to prosecutions which had actually been commenced under the Act of 1875, before the Act of 1903 was passed, but to prosecutions which might hare been begun under the Act of 1875, or in other words, to prosecutions actually begun under the former act, after its amendment for crimes committed before the amendment. To quote the language of the judge in this regard: "The word 'begun,' as here employed, is not the preterit of 'begin,' expressing that verb in its past tense. It is, in our judgment, the past participle, performing solely the function of a connective — the verbal ad jective qualifying any prosecutions in mind, pen ding .or future, its sole purpose being to show that such prosecution is one under the Act of 1875." Baker, circuit judge, specially concurring, is impressed with the controlling importance of a different phase of the case, and bases his opinion upon the general provision of Act February 35, 1871, c. 71 (U. S. Comp. St. 1901, p. 6), that the repeal of any statute shall not have effect to release or extinguish any penalty, forfeiture or liability incurred under such statute, unless the repealing act shall so expressly provide. The act is construed as constituting a rule of construc tion for the courts in obedience to which the statute of 1875 must be regarded as still in opera tion for the purpose of all prosecutions for viola tions of it, inasmuch as the Act of 1903 does not expressly provide otherwise. Jenkins, circuit judge, dissenting, sees the sav ing clause of the Act of 1903 in an entirely dif ferent light when considered with respect to the same statute on which Judge Baker rests his opinion. The rule of construction prescribed by the statute of 1871 would, says Judge Jenkins, have operated to continue the Act of 1875 in force for the purpose of prosecutions under it after the Act of 1903, hence, if the saving clause was intended merely to accomplish the same re sult, it was wholly useless — and in deference to the legal fiction that Congress must have meant something by what it said, he concludes that it meant what it said, and that the saving clause, instead of being regarded as a useless bit of cir cumlocution to enact a rule which would have existed just the same without any enactment, should be construed as modifying the general provisions of the Act of 1871 and limiting prose cutions under the Act of 1875 to such as had been actually commenced before the enactment of the statute of 1903.