be kept without impairing the effectiveness, and satisfactory operation of the law.

By the construction here adopted, also, the treaty and the law are in harmony; and the various provisions of the act are consistent and in accord with each other. But, on the construction insisted upon by the United States attorney and sanctioned by the presiding justice, the treaty and the law conflict, and various provisions of the restriction act itself are inharmonious and inconsistent with each other.

I, therefore, dissent from the decision of the presiding justice, and from the order remanding petitioner.

THE CASE OF THE CHINESE BOY CITIZEN.

[IN RE LOOK TIN SING, ON HABEAS CORPUS.]
September 29, 1884.

CHINESE BORN IN UNITED STATES STATUS OF - CITIZENSHIP-RESTRICTION ACTS.---A person born in the United States of Chinese parents, who were subjects of the Emperor of China, is a citizen of the United States, within the meaning of the fourteenth amendment to the constitution. If such citizen leaves the United States before the Chinese restriction act of 1882 went into operation, he is entitled to re-enter the same after the restriction act of 1884 went into operation, without producing the certificate provided for in either of such

acts.

THE SAME FOURTEENTH AMENDMENT.-Section first of the fourteenth amendment to the constitution of the United States, declaring who are citizens of the United States, commented upon and explained.

APPLICATION for a writ of habeas corpus. The opinion states the

facts.

Before FIELD, Circuit Justice; SAWYER, Circuit Judge; and SABIN and HOFFMAN, District Judges.

T. D. Riordan and William M. Stewart, for the petitioner. S. G. Hilborn, United States Attorney, Carroll Cook, Assistant United States Attorney, and John N. Pomeroy, for the United States.

FIELD, Circuit Justice, rendered the opinion of the court:

The petitioner is a Chinese boy of the age of fourteen years. He was born in Mendocino, in the state of California, in 1870. In 1879 he went to China, and returned to the port of San Francisco during the present month (September, 1884) and now seeks to land, claiming the right to enter the United States as a citizen thereof by birth. It is admitted by an agreed statement of facts that his parents are now residing in Mendocino, in California, and have resided there for the last twenty years; that they are of the Chinese race, and have always been subjects of the Emperor of China; that it was the intention of his father, when he sent the petitioner to China, that he should return to this country; that the father is a merchant at Mendocino, and is not here in any diplomatic or other official capacity under the

Emperor of China. The petitioner is without any certificate, either under the act of 1882 or that of 1884, and the district attorney of the United States, intervening for the government, objects to his landing for the want of such certificate.

The first section of the fourteenth amendment to the constitution declares that "all persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside." This language would seem to be sufficiently broad to cover the case of the petitioner. He is a person born in the United States. Any doubt on the subject, if there can be any, must arise out of the words "subject to the jurisdiction thereof." These words were designed to cover the case of children born in the United States of persons engaged in the diplomatic service of foreign governments, such as ministers and ambassadors, whose residence, by a fiction of public law, is regarded as part of their own country. This ex-territoriality of their residence secures to their children born here all the rights and privileges which would inure to them had they been born in the country of their parents They also cover the case of persons born on the public vessels of a foreign country, whilst within the waters of the United States, and consequently within their territorial jurisdiction. Such persons are considered as born in the country to which the public vessel belongs. They are not born, in the sense of public law, within the jurisdiction of the United States.

The language used has also a more extended purpose. The doctrine recognized in the United States is the right of every one to expatriate himself and choose, if he likes, another country. This right would seem to follow from the greater right recognized and proclaimed to the world in the immortal document in which the American colonies declared their independence and separation from the British crown, as belonging to every human being-God-given and inalienable-the right to pursue one's happiness. The English doctrine, that allegiance to the government of one's birth is perpetual, attending the subject wherever he goes, never has taken root in this country, although there are dicta in some judicial decisions that a citizen cannot renounce his allegiance to the United States without the permission of the government, under regulations prescribed by law; and this would seem to have been the opinion of Chancellor Kent when he published his commentaries. But a different doctrine prevails now. The naturalization laws have always proceeded upon the theory that any one can change his home and allegiance without the consent of his government. And we adopt as our citizens those belonging to our race, who come from other lands and show attachment to our institutions, and desire to be incorporated with us. So profoundly convinced are our people of the right of these dwellers in other countries to change their residence and allegiance, that when once they are naturalized they are deemed entitled, with the native-born, to all the protection which the strong arm of the national government can extend to them, where

ever they may be, at home or abroad. And the same right, accorded to the people of other countries to become citizens here, is accorded to them and to the native-born, to change, if they choose, their allegiance from our government to that of other states. In an opinion given by Judge Black, when attorney-general of the United States, in the case of a native Bavarian, naturalized in this country, who desired to resume his status as a Bavarian, this doctrine is recognized. "There is," he says, "no statute or other law of the United States which prevents either a native or naturalized citizen from severing his political connection with this government, if he sees proper to do so in time of peace, and for a purpose not directly injurious to the interests of the country. There is no mode of renunciation prescribed. In my opinion if he emigrates, carries his family and effects with him, manifests a plain intention not to return, takes up his permanent residence abroad, and assumes the obligation of a subject to a foreign government, this would imply a dissolution of his previous relations with the United States, and I do not think we could, or would afterwards claim from him any of the duties of a citizen."

The doctrine thus stated has long been recognized in the United States as a settled rule of public law; and in the treaty of 1868 with China and this country, the right of man to change his home and allegiance is recognized as "inherent and inalienable:" Art. V. So if persons born or naturalized in the United States have removed from the country and renounced in any of the ordinary modes of renunciation, their citizenship, they cease to be persons subject to the jurisdiction of the United States.

With this explanation of the meaning of the words in the fourteenth amendment, "subject to the jurisdiction thereof," it is evident that they do not exclude the petitioner from citizenship. He is not within any of the classes of persons excluded by them from being citizens.

The clause declaring who are citizens of the United States was inserted in the amendment to do away with the judgment in the Dred Scott case, which had decided that persons of the Africanrace brought to this country and sold as slaves, and their descendants, were not citizens of the United States, and were incapable of becoming such. The clause in question changed the entire status of those people. It lifted them from their condition of mere freedmen to that of citizens, equally entitled with all other native-born to the rights which attended citizenship. When this amendment was adopted, the naturalization laws of the United States excluded all colored persons from becoming citizens, and the freedmen and their descendants, not being aliens, were without the purview of those laws. So the impossibility of the persons themselves becoming citizens under the naturalization laws in no respect impairs the effect of their birth, or the birth of their children upon the status of either as citizens.

Independently of the constitutional provision it has always been the doctrine of this country, except as applied to Africans brought here and sold as slaves and their descendants, that birth within the dominions and jurisdiction of the United States of itself creates citizenship. This subject was elaborately considered by Assistant Vice-Chancellor Sanford in Lynch against Clarke, found in the first volume of his reports. In that case, one Julia Lynch was born in the city of New York in 1819, of alien parents, during their temporary sojourn in that city, and returned with them the same year to their native country and always resided there afterwards. It was held that she was a citizen of the United States.

After an exhaustive examination of the law the chancellor said that he entertained no doubt that every person born within the dominions and allegiance of the United States, whatever were the situations of his parents, was a natural-born citizen; and that this was the general understanding of the legal profession, and the universal impression of the public mind. In illustration of this general understanding, he mentioned the fact that when at an election an inquiry is made whether the person offering to vote is a citizen or an alien, if he answers that he is a native of this country the answer is received as conclusive that he is a citizen; that no one inquires further; no one asks whether his parents were citizens or were foreigners; it is enough that he was born here, whatever was the status of his parents. He shows also that legislative expositions on the subject speak but one language, and he cites to that effect not only the laws of the United States, but the statutes of a great number of states, and establishes conclusively that there is on this subject a concurrence of judicial opinion and legislative declaration, which accords with the general understanding of the profession and of the public.

Whether it is possible for aliens who could be naturalized citizens of the United States to renounce for their children whilst under the age of majority the right of citizenship when, by the naturalization laws, they could acquire it for them, it is unnecessary to consider, as no such question is presented here. Nor is the further question before us whether if the parents cannot themselves become citizens, they can, by their acts, release any rights conferred upon their children by the constitution.

As to the position of the district attorney, that the restriction act excludes the re-entry of the petitioner into the United States, even if he be a citizen, only a word is necessary. No citizen can be banished from his country except in punishment for crime. Banishment for any other cause is unknown to our laws, and beyond the power of congress. The petitioner must be allowed to land, and it is so ordered.

THE CASE OF THE CHINESE WIFE.

[IN RE AH MOY, ON HABEAS CORPUS.]

September 29, 1884.

CHINESE RESTRICTION ACT-ADMISSION TO BAIL OF REMANDED PRISONER.--A Chinese person, prohibited by the restriction act from coming into the United States, and who has been remanded to the custody of the marshal to be deported therefrom, cannot be permitted to land upon giving bail for his appearance at the time of the sailing of the vessel upon which he is ordered to be deported.

APPLICATION for admission to bail. The opinion states the facts. Before FIELD, Circuit Justice; SAWYER, Circuit Judge; and HOFFMAN and SABIN, District Judges.

T. D. Riordan and L. I. Mowry, for the petitioner.

S. G. Hilborn, United States Attorney, and Carroll Cook, Assistant United States Attorney, for the United States.

FIELD, CIRCUIT JUSTICE. In this case Ah Moy was remanded to the custody of the marshal, to be deported from the United States, upon the vessel by which she was brought to the port of San Francisco, or some other vessel of the steamship company. It appears from the statement of her counsel, that the vessel in which she was brought has departed, and that no other vessel of the company will leave this port under two weeks. He, therefore, asks that, in the meantime, she may be admitted to bail, upon a recognizance that she will appear when the vessel is ready to depart.

The application cannot be granted. According to our decision the petitioner was, under the law, prohibited from landing. We have no authority to allow this law to be evaded upon any conditions. We cannot say she shall be allowed to land for fifteen days, upon giving bail for her appearance at the end of that time, without a violation of its provisions.

Application denied.

SAWYER, CIRCUIT JUDGE, DISSENTING.

Ah Moy, the wife of a Chinese laborer, came from China on the steamship City of Tokio, with her husband, who was entitled to reenter the United States, and was permitted to land. The wife, who had never been in the country before, was not permitted to land, and was, consequently, detained on the ship by the master. A writ of habeas corpus having been obtained, she was produced in court upon return of the writ, and by the court admitted to bail pending the proceeding to determine whether, or not, she was entitled to land. Upon the final hearing, the question arising under the restriction act, was determined against her, and she was remanded, to be retransported to China, and ordered into the custody of the marshal for the purpose of returning her to the custody, whence she had been, temporarily, taken, under the writ for the purposes of the enquiry as to her rights. Upon attempting to execute the order to remand petitioner, it was found, that the ship on which she came