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to a long line of decisions, that the contracts were New York, where we are bound to presume the comNew York contracts. Cotheal v. Blydenburgh, 1 Hal. mon law exists unaltered ? Ch. 17; S. C., id. 631; De Wolf v. Johnson, 10 Wheat. The enforcement of a foreign law and contracts 367 ; Dolman v. Cook, 1 McCart. 56; Campion v. Kille, dependent thereon for validity, within another jurisid. 229; S. C., 2 id. 476; Atwater v. Walker, 1 C. E. Gr. diction and by the courts of another nation, is not to 42.
be demanded as a matter of strict right. It is permitWhere contracts of a particular kind are forbidden ted, if at all,only from the comity which exists between by the law of the State in which they are sought to be States and nations. Every independent community enforced, and the party seeking to enforce them relies must judge for itself how far tbis comity ought to exupon the fact that they were made in a foreign State, tend. Certain principles are well vigh universally recand are valid contracts by the lex loci contractus, it has oguized as governing this subject. It is everywhere been held elsewhere that he is bound to aver and prove admitted that a contract respecting matter malum in those facts. Thatcher v. Morris, 11 N. Y. 437.
se, or a contract contra bonos mores, will not be enBut the rule which seems to have been established forced elsewhere, however euforceable by the lex loci in this State requires one who defends against a for- contractus. An almost complete agreement exists upon eign contract, if he relies on its being invalid by force the proposition that a contract valid where made will of the lex loci contractus, to both set up and prove the not be enforced by the courts of another country, if foreign law. Campion v. Kille, ubi supra; Dolman v. in doing so, they must violate the plain public policy Cook, ubi supra; Unler v. Semple, 5 C. E. Gr. 288. of the country whose jurisdiction is invoked to enforce
We have then to deal with transactions which took it, or if its enforcement would be injurious to the inplace within the State of New York, and must be pre- terest or conflict with the operation of the public laws sumed to be governed by the laws of that State. What- of that country. Story's Confl. Laws, $ 244; 1 Add. ever may be the rule respecting the burden of setting Cont., $ 241; Forbes v. Cochrane, 2 B. & C. 448; Grell ap and proving the law of the foreign State under such v. Levy, 16 C. B. (N. S.) 73; Hope v. Hope, 8 De G., circumstances, neither appellants nor respondent have M. & G. 731; 2 Kent Com. 475; Bank of Augusta v. furnished in their pleadings or proofs any information Earle, 13 Pet. 519; Ogden v. Saunders, 12 Wheat. 213; on the subject. In the absence of proof of the law of Blanchard v. Russell, 13 Mass. 1. This proposition has another State, the better opinion is, that at least with been announced and applied in our own State. Varrespect to States comprised in the territory severed num v. Camp, 1 Gr. 326; Frazier v. Fredericks, 4 Zab. from England by the revolution, the presumption is 162; Moore v. Bonnell, 2 Vroom, 90; Bentley v. Whittethat the common law prevails. White v. Knapp, 47 more,
4 C. E. Gr. 462; Watson v. Murray, 8 id. 257; Barb. 549; Stokes v. Macken, 62 id. 145; Holmes v. Union L. & E. Co. v. Erie R. Co., 8 Vroom, 23. Broughton, 10 Wend. 75; Thurston v. Percival, 1 Pick. Since the courts of each State must, at least in the 415; Shepherd v. Nabors, 6 Ala. (N.S.) 631; Walker v. Wal- absence of positive law, determine how far comity reker, 41 id. 353; Thompson v. Monrou, 2 Cal. 99; Inge v. quires the enforcement of foreign contracts, it results Murphy, 10 Ala. 885; Norris v.Ilarris, 15 Cal. 226; Titus that there is contrariety of view, and the proposition F. Scantling, 4 Blackf. 89; Crouch v. Hall, 15 Ill, 263; above stated is not universally admitted. Thus in Brown v. Pratt, 3 Jones (N. C.) Eq. 202.
New York a contract made in Kentucky, under a law By the common law contracts of wager and similar of that State, establishing a lottery for the benefit of contracts were not objectionable per se. They were a college, was upheld, notwithstanding the law of New in fact enforced by the courts without any objection York prohibiting lotteries. Com. of Ky. v. Bassford, on the score of being dependent on a chance or cas- 6 Hill, 526. nalty. Courts did in some instances refuse to enforce Chief Justice Nelson limited the cases of contracts such contracts, but only when the subject of the wager not enforceable, though valid where made, to such as was objectionable, as tending to encourage acts con- are plainly contrary to morality. He gave no considtrary to sound morals (Gilbert v. Sykes, 16 East, 150); eration to the doctrine elsewhere settled, that excludes or being injurious to the feelings or interest of third from enforcement contracts opposed to the public polpersons (Da Costa v. Jones, Cowp. 729), or against pub. icy or violative of a public law of the place of enforcelic policy or public duty. Atherfold v. Beard, 2 T. R. ment. In this view he seems to be sustained by the 610; Tappenden v. Randall, 2 B. & P. 467; Shirley v. Court of Appeals. Thatcher v. Morris, 11 N. Y. 437. Sankey, id. 130; Hartley v. Rice, 10 East, 22.
So in Massachusetts a contract arising out of a comIt has not been urged, nor does there seem to be pleted sale of lottery tickets, in a State where such ground for contending, that the transactions in ques- sale was lawful, was enforced by the courts, although tion were such as by the common law would not be en- such sale was there prohibited by statute. McIntyre forced.
v. Parks, 3 Meto. 207. But there was no discussion of We are therefore required to determine whether principles by the court. these contracts, made in the State of New York, and The courts of this State have expressed and'enforced presumed to be governed, as to their validity, by the different views. Thus in Varnum v. Camp, 1 Gr. 326, doctrines of the common law, and not objectionable the question of the validity of a foreign assignment for thereunder, are to be enforced in this State.
the benefit of creditors came before the Supreme The common law under which such contracts were Court. The assignment was made in New York, and enforceable has been here altered by the passage of the was assumed to be valid by the law of that State. It act against gaming above reterred to. By the first created preferences, and by the law of this State was section all wagers, bets or stakes made to depend on fraudulent and void. The assignment was held unenany lot, chance, casualty or unknown or contingent forceable here. (hief Justice Ewing, whose opinion event are declared to be unlawful. By the third sec- was adopted by the court, puts the decision distinctly tion all bonds, mortgages, or other securities made or upon the ground that the assignment was one in violagiven, where the whole or any part of the cousidera- tion of the policy of our laws, in hostility with their tion shall be for money laid or betted in violation of provisions, and which they declared to be fraudulent the first section, or for repaying money knowingly ad- and void. vanced to help or facilitate such violation are declared In Bentley v. Whittemore, 4 C. E. Gr. 462, a similar to be utterly void.
question arose in this court, and the doctrine of VarIf the contracts now gought to be enforced would be num v. Camp was restated and affirmed. The applicaobnoxious to these provisions of our statute, if made tion of the doctrine was however limited to the proin this State, are we to enforce them because made in tection of the residents and citizens of this State, for whose benefit its public policy was held to be adopted. It remains to determine whether the enforcement of With respect to non-residents or citizens of other these contracts will conflict with the provisions of this States it was held that comity would require the rec- statute and the public policy thereby established. If ognition of foreign assiguments if valid where made. 80, it must be for the reason that the mortgage secures Watson v. Murray, ubi supra, was the case of a bill fled an indebtedness arising out of transactions that are for an account of a partnership transaction in a lottery wagers. in another State, where such a transaction was claimed In considering this question, care should be taken to be lawful. The bill was dismissed on the advice of not to trench upon legitimate and proper enterprises. Vice-Chancellor Dodd. His conclusion was that such The act is not intended to interfere with the right of a transaction, though valid where made, should not be buying and selling for speculation. euforced here, because it was in violation of a public The line is to be drawn between what is legitimate law of this State, and within the exceptions to the rule speculation and what is uulawful wager. When propof comity requiring the enforcement of foreign con. erty is actually bought, whether with money or with tracts. He furtber argued that lotteries are not only credit, the purchaser and owner may lawfully hold it illegal, but are judicially considered to be im- for a future rise and risk a future fall. With such moral. It is unnecessary to determine how far that transactions the law does not pretend to interfere. view can be sustained. But with the conclusion ar- They are within the line of lawful speculation. rived at I unhesitatingly agree. It is in accord with But when either without any disguise or under a the decisions in Varnum v. Camp and Bentley v. guise which stimulates such legitimate enterprises, Whittemore. It seems to me that no court can, on full the real transaction is a mere dealing in the differen. consideration, deliberately adopt a rule that will re- ces between prices, i. e., in the payments of future quire the enforcement of foreigo contracts, violative profits or future losses, as the event may be, then in of the public laws and subversive of the distinct pub- my judgment, the line which separates lawful speculalic policy of the country whose laws and policy they tion from illegal wagering is crossed, and the coutract, are bound to enforce. No comitas inter communitutes under our law, becomes uulawful, and the securities can com pel such a sacrifice.
for it void. The limitations on the rule laid down in Bentley v. This proposition is sustained by all the cases, Whittemore do not come in question in this case.
It without an exception, that I can discover. The appears that Mrs. Flagg was, in fact, a resident of this only disagreement relates to the application of the State at the time these contracts were made, and there doctrine. is nothing to show a change of residence.
Thus in New York, the Court of Appeals, in KingsWe are brought then to the question whether our bury v. Kirwan, 77 N. Y. 612, declared that a contract law against gaming is such a public law and establishes for the purchase and sale of property would be a such a publio policy as to require us to refuse to eu- wagering contract, if it was the understanding that force foreign contracts in conflict with it in a case like the property should not be delivered, but that only that under consideration. I think this question must the difference in the market price should be paid and be answered in the affirmative.
received. It is true that in Dolman v. Cook and Campion v. In Bigelow v. Benedict, 70 N. Y. 202, the same view Kille, ubi supra, foreign contracts, valid by the law of had been expressed, and it was also held that although the State where made, were enforced here, although the form of the contract was unobjectionable, yet it by our law they were usurious and declared to be void. in fact it was a mere cover for betting on the future No consideration seems to have been given to the ques- price of a commodity, and no actual sale or purchase tion whether our usury law was such a law and was intended, the contract was one of wager. evinced such a public policy as required us to refrain It is true that the same court has determined, though from enforcing foreign contracts in conflict with it. against the protest of able and distinguished judges, As we have seen, that consideration led our courts to that between the broker purchasing on a margin and reject foreign assignments violative of our laws where his customer, the relation of principal and agent and the interests of our own citizens were concerned. But a of pledgor and pledgee exists. Murkham v. Jaudon, plain distinction at once presents itself between a usury 41 N. Y. 235; Baker v. Drake, 66 id. 518; Gruman v. law and a law regulating assignments for the benefit of Smith, 81 id. 25. creditors, or a law against gaming. One affects only
It has been there held that a broker can recover the parties to the contract, and is framed for the pro- from his customer deficiencies arising from sales of tection of the borrower. The others relate to the pub- stocks bought on a margin, and that where, upon a lic or classes of the public who are interested therein margin, a broker made “short sales" of stock, which and affected thereby.
he borrowed for that purpose, he might recover of his But our law against gaming goes further than to customer what was expended in replacing the bormerely probibit the vice or avoid contracts tainted rowed stock. Wicks v. Hatch, 62 N. Y. 535; Knowlton with it. It declares it unlawful, and so puts the con- v. Filch, 52 id. 288. But in these cases it does not seem tracts beyond the protection of the law or the right to have been contended that the contract was a mere of appeal to the courts. The reason and object of the cover for wager. Such contention was made in King law are obvious. The vice aimed at is not only injur- bury v. Kirwan and Bigelow v. Benedict, but it was ious to the person who games, but wastes his property, held that there was no sufficient evidence that the to the injury of those dependent on him, or who are transactions were not real. Upon a review of all the to succeed to him. It has its more public aspect, for if it cases in New York, they establiah, in my judgment, be announced that a trustee has been false to his trust, the correct doctrine that a contract relating to differor a public officer has embezzled publio funds, by com- ences only would be a wager contract. But they also mon consent, the first inquiry is whether the defaulter hold that dealings on margin are not to be considered has been wasting his property in gambling.
as dealings in mere differences. If in any case, eriIn my judgment, our law against gaming is of such dence sufficient to show that the margin dealings were a character, and is designed for the prevention of a mere covers for dealings in differences was produced, vice, producing injury so widespread in its effect, the then upon the principles there laid down, the contracts policy evinced thereby is of such public interest that would be wagers. comity does not require us to here enforce a contract, In the courts of Pennsylvania, the same principles which by that law is stigmatized as unlawful, and so have been often enunciated. Thus in Smith v. Boucier, prohibited.
70 Penn. St. 325, the court approved a charge to a jury
which left to them to say whether the transactions em- have precluded him from claiming, in a court of law, braced iu the case were bona fide or were mere covers any indemnity from the defendant in respect of lia. for gambling operations. See also Fareira v. Gabell, 89 bilities incurred." He points out that it had been Penn. St. 89.
beld under the English act of 8 and 9 Vict., above And in general, whenever the verdict of a jury es- cited, that although gaming and wagering contracts tablished, or the evidence required the court to hold, could not be enforced, they were not illegal. He draws that the transactions, however correct in point of the conclusion that the acts of the broker, not being form, were mere dealings in differences, they were de- in furtherance of an illegal transaction, and being diclared to be wagers. Brua's Appeal, 55 Penn. St. 294; rected by the customer, entitled him to indemnity Kirkpatrick v. Bonsall, 72 id. 155; Maxton v. Gheen, 75 against loss thereby. On appeal, the views of the trial id. 166; North v. Phillips, 89 id. 250; Dickson v. Thomas, judge were approved. 97 id. 278; Ruchizky v. De Haven, id. 202; Patterson's It will be observed that our statute declares such Appeal, 16 Rep. 59.
contracts not only void, but unlawful, and further, The point of divergence between the New York and that the relation of agenoy between the customer and Pennsylvania cases is upon the relation existing be broker, in such transactions on which the decision was tween the customer and the broker who is managing a grounded, is not, by the weight of authority in this speculative account upon a margin. The New York country, recognized as the real relation of the parties. cases treat the broker as a mere agent, and so as a For reasons above given, I think it clear that the pledgee of the stocks purchased on such an account. customer and broker, in these margiu transactions, This result was reached by a divided court, Justices deal as two principals, and not as priucipal and Grover and Woodruff delivering vigorous dissenting agent. opinious. The latter especially points out in a per- My conclusion is that these transactions, so far as afspicuous, and in my judgment, convincing way, the fected by our law against gaming, are to be examined, plain difference between a stock broker dealing on to discover their real nature, and if however unobmargius and a broker or agent in ordinary transac-jectionable their form may be, the real contract is tións. Markham v. Jaudon, 41 N. Y. 256.
merely in respect to differences, the contract is a waIn Pennsylvania, it is held that one who enters into ger, both void and unlawful. a stock speculation on margins, with a stock broker, is On examining the transactions in question in this to be considered as dealing with the broker as a prin cause, with a view to discover their real character, I cipal, and not as an agent. Ruchizky v. De Haven, am compelled to the conclusion, that however they supra. This view is, in my judgment, eutirely cor- may have been made to imitate real transactions, they rect. The customer who deals on margins knows no were in fact mere wagers. It never was contemplated, other persou in the transaction but the broker. He has intended or agreed, by either party, that the stocks no claim upon, and is subject to no liability to any purchased or sold were to become or to be treated other person whatever.
as the stocks of appellants. The real contract disThe same doctrine has been announced by the Su- closed by the evidence was to receive and to pay difpreme Court of the District of Columbia (Justh v. ferences. Holliday, 2 Mack. 346), and by the United All the transactions were upon margins. They comStates Circuit Court in the District of Kansas. Cobb menced by Flagg's depositing $1,000 with respondent, v. Prell, 22 Am. L. Reg. (N. S.) 609. To the latter case when he agreed to open the account, which was wholly a note is appended, discussing the subject and collect- a speculative account. Afterward Flagg deposited ing many cases.
$300 more. Then the wife's note for $4,500 was put in, In Grizewood v. Blane, 11 C. B. 526, it was held that and the account transferred to her name. Finally the a colorable contract for the sale and purchase of rail. bond and mortgage were given. way shares, when neither party intends to deliver or Upon these advances the purchases were very large. accept the shares, but merely to pay differences ac- Respondent testifies that upon the margin of $1,300, cording to the rise and fall of the market, was a gam
stocks of a cash value of about $450,000 were purchased ing contract, within the 8 and 9 Vict., ch 109, $ 18, for the account between January 28 and June 16, which declares contracts by way of gaming and wager:
1880. After the account was transferred to Mrs. ing void, and forbids recovery of any money won on a Flagg's name, stocks to an amount between $600,000 wager. The subsequent case of Thacker v. Hardy, 4 Q. and $700,000, were purchased between June 16, 1880 B. Div. 685, does not shake the authority of Grizewood and March 17, 1881. Thus in less than fourteen months v. Blane, but expressly approves it. Since however, purchases aggregating over $1,000,000 were made. Acin the case of Thacker v. Hardy, a broker was permit-cording to Flagg's statement, the account once held ted to recover of his customer indemnity for contracts one thousand three hundred shares, of a par value of entered into on a speculative account, although the $1,300,000. broker knew the customer did not intend to accept The certificates of the stocks were never transferred the stock bought or deliver the stock sold for him, but or delivered to appellants. expected the broker to so arrange matters that noth- These enormous trausactions were far beyond the ing but differences were to be payable by him, it has ability of appellants at any time, and were known to been much relied on by respondent's counsel. But in be so. It appears that respondent was notified that that case the broker was treated as a mere agent en- the first advance was all that Flagg had to speculate tering into contracts for his principal, and so entitled with. The wife's note, and subsequently her bond and to indemnity against any personal liability thereon. mortgage, were resorted to with the avowed purpose The ground of decision was that the contract, as be- of binding her separate property. Respondent admits tween the customer and the other principal (the stock that he was informed and knew that Flagg was broker being treated as mere ageut), was at the most speculating for all that Mrs. Flagg and he had in the void, but not illegal, and that the broker's right of in- world. demnity was not affected thereby. Thus, Lindsley, Under such circumstances, it is idle to pretend that J., by whom the case was tried without a jury, says there was or could be any hope or expectation that apthat: “If gaming and wagering were illegal, I should pellants were to take or could be required to take these be of opinion that the illegality of the transactions in vast amounts of stock. For respondent to have tenwbich the plaintiff and defendant were engaged, would dered them, and demanded payment for them, would have tainted, as between them, wbatever plaintiff had have been absurd in the extreme. The whole circumdone in furtherance of their illegal designs, and would stances show that no such right to tender entered into the transaction. On the contrary, the contract plainly CITIZENSHIP OF A PERSON BORN IN THE was that if the stocks bought advanced, the protit UNITED STATES OF CHINESE PARENTS. was to be realized by a sale. If they declined, the remedy of respondent to save himself was by a sale.
UNITED STATES CIRCUIT COURT OF CALIFORNIA. The settlement was to be of the profits and losses thus
SEPTEMBER 29, 1884. ascertained.
If in the absence of express stipulation, the reciprocal rights of tendering and demanding this stock
IN THE MATTER OF LOOK TIN SING, ON HABEAS would be presumed to enter into such a contract, the
CORPUS whole circumstances corroborate the testimony of A person born within the United States of Chinese parents ree Flagg, who swears that it was expressly under
siding therein, and not engaged in any diplomatic or othstood that there was not to be any actual delivery of cial capacity under the Emperor of China, is a citizen of stocks, and that he should not be required to pay for the United States. them.
Persons are subject to the jurisdiction of the United States In the able opinion below, much stress is laid on the who are within their dominions and under the protection fact that the purchases and sales for this account were of their laws, with the consequent obligation to obey actually made by respondent. He so testifies, and them when obedience can be rendered; but only those wbo produces vouchers in corroboration of his statement. are thus subject by their birth or naturalization are That the transactions were very large, and upon a within the terms of the amendment. The jurisdiction petty advance, is not sufficient probably to permit us over these latter must at the time be both actual and erto reject this positive statement. But assuming it to clusive. Persons excepted from citizenship, notwithbe true that respondent actually purchased or sold standing their birth or naturalization in the United every share of stock in this account, I am unable to
States. perceive how the circumstance affects the conclusion Previous to this amendment, the general doctrine, except as in this case. If respondent was the mere agent of the applied to Africans brought here and sold as slaves, and appellants in transactions with third parties, there their descendants, was that birth within the dominions might be some siguificance attached to it. But such is and jurisdiction of the United States, of itself created not, as we have seen, the real nature of the relation citizenship. The amendment was adopted as an authori. between the parties. They were dealing, as to this tative declaration of this doctrine as to the white race, transaction, as principals, and it was a matter of in- and also to do away with the exception as to Africans and difference whether respondent owned or bought the
their descendants. stock he agreed to carry. The transaction was pre- The acts of Congress of 1882 and 1884, restricting the immicisely like that which Judge Woodruff, in the dissent- gration of Chinese laborers to the United States, are not ing opinion in Markham v. Jaudon, characterized as
applicable to citizens of the United States, though of “an executory agreement for a pure speculation in the
Chinese parentage. No citizen can be excluded from the rise and fall of stuck, which the broker, on condition
United States except in punishment for crime. of indemnity against loss, agrees to carry through in his own name and on his own means or credit, accounting to him (the customer) for the profits, if any, Before Circuit Justice Field, Circuit Judge Sawyer, and holding him responsible for the losses."
Such an and District Judge Sabin.* agreement is within the principles above referred to, a
T. D. Riordan and William M. Stewart, for petiwager. Nor is the result altered by the fact that the broker
tioner. has or attempts to retain perfect indemnity against
S. G. Hilborn, United States Attorney, Carroll loss on his part. As I interpret the transactions, re
Cook, Assistant United States Attorney, and John N. 'spondent, in consideration of commissions and inter
Pomeroy, for United States. est on advances, agreed to buy and hold stock in anticipation of a rise; or to sell stock of his own, or bor- FIELD, C. J. The petitioner belongs to the Chinese rowed for that purpose, in anticipation of a fall. The race, but he was born in Mendocino, in the State of agreement required him to pay the profits of the trans- California, in 1880. In 1879 he went to China, and reaction, which would otherwise be his, to appellants. turned to the port of San Francisco during the presOn the other hand, appellants, in consideration of his ent month (September, 1884), and now seeks to land. thus carrying the stock bought, or providing the stock claiming the right to do so as a natural born citizen of sold, agreed that in case of a rise or fall to a certain the United States. It is admitted by an agreed stateamount, the stock should be closed out, and the loss, ment of facts that his parents are now residing in which otherwise would fall on respondent, should be Mendocino in California, and hare resided there for paid by them to him. This bargain contained all the the last twenty years; that they are of the Chinese elements of a wager. It is not less a wager because race, and have always been subjects of the emperor of one of the parties obtained a guaranty for the per- China; that his father sent the petitioner to China, formance of the bargain by the other party.
but with the intention that he should return to this For these reasons my conclusion is that the trans- country; that the father is a merchant at Mendocino, actions iu question were wagers withiu the meaning of and is not here in any diplomatio or other official caour law; that the securities given for them would be pacity under the emperor of China. The petitioner is absolutely void if the contracts were made in this with out any certificate, under the act of 1882 or of State; that although made in a foreign State, and not 1884, and the district attorney of the United States, objectionable by the law which must be presumed (in intervening for the government, objects to his lauding the absence of proof) to govern them, they will not be, for the want of such certificate. and ought not to be enforced in this State between The first section of the Fourteenth Amendment to these parties, because to euforce them would be op- the Constitution declares that “all persons born or posed to a public policy on this subject of the vice of naturalized in the United States, and subject to the gaming, perspicuously showu by our law on that sub- jurisdiction thereof are citizens of the United States ject. The decree below must be reversed, and a decree en
*Judge Hoffman did not sit on the hearing of this case, but tered dismissing the bill. Appellants are entitled to
he was on the bench when the opinion was delivered, and their costs.
concured in the views expressed.
APPLICATION for a writ of habeas corpus. The
and of the State wherein they reside.” This language or other law of the United States which prevents would seem to be sufficiently broad to cover the case either a native or naturalized citizen from severing of the petitioner. He is a person born in the United bis political connection with this government, if he States. Any doubt on the subject, if there can be any, sees proper to do so in time of peace, and for a purpose must arise out of the words " subject to the jurisdio- not directly injurious to the interests of the country. tion thereof." They alone are subject to the jurisdic- There is no mode of renunciation prescribed. In my tion of the United States who are within their domin- opinion if he emigrates, carries his family and effects ions and under the protection of their laws, and with with him, manifests a plain intention not to return, the consequent obligation to obey them, when obedi- takes up his permanent residence abroad, and assumes ence can be rendered; and only those thus subject by the obligation of a subject to a foreign government, their birth or naturalization, are within the terms of this would imply a dissolution of his previous relations the amendment.
with the United States, and I do not think we could, The jurisdiction over these latter must at the time or would, afterward claim from him any of the dube both actual and exclusive. The words mentioned ties of a citizen.” Opinions of Atty. Gens., vol. except from citizenship children born in the United 9, 62. States of persons engaged in the diplomatic service of The doctrine thus stated has long been received in foreign governments, such as ministers and ambassa- the United States as a settled rule of publio law; and dors, whose residence, by a fiction of public law, is re- in the treaty of 1868 between China and this country, garded as part of their own country. This extra-territo- the right of man to change his home and allegiance is riality of their residence secures to their children born recognized as "inherent and inalienable. Art. 6, 16 here all the rights and privileges which would inure Stats. 740. And in the recital of an act of Congress to them had they been born in the country of their passed nearly at the same time with the signing of the parents.
treaty, this right is assumed to be “a natural and inPersons born on a public vessel of a foreign country, herent right of all people, indispensable to the enjoywhilst witbin the waters of the United States, and ment of the rights of life, liberty, and tbe pursuit of consequently within their territorial jurisdiction, are happiness;” and in the body of the act, “any declaraalso excepted. They are considered as born in the tion, instruction, opinion, order or decision of any of. country to which the vessel belongs. In the sense of ficers of this government which denies, restricts, impublic law, they are not born within the jurisdiction pairs or questions the right of expatriation,” is deof the United States.
clared to be “inconsistent with the fundamental prinThe language used has also a more extended pur- ciples" of our government. 13 Stats. 223; Rev. Stat., pose. It was designed to except from citizenship per- $ 1999. sons, who though born or naturalized in the United So therefore if persons born or naturalized in the States, have renounced their allegiance to our govern- United States have removed from the country ment, and thus dissolved their political connection and renounced, in any of the ordinary modes of rewith the country. The United States recognize the nunciation, their citizenship, they thenceforth cease to right of every one to expatriate himself and choose be subject to the jurisdiction of the United States. another country. This right would seem to follow With this explanation of the meaning of the words from the greater right proclaimed to the world in the in the Fourteenth Amendment, “subject to the jurismemorable document in which the American Colonies diction thereof," it is evident that they do not exdeclared their independence and separation from the clude the petitioner from being a citizen. He is not British Crown, as belonging to every hurnau being- within any of the classes of persons excepted from God-given and inalienable-the right to pursue his citizenship; and the jurisdiction the Unit States own happiness. The English doctrine of perpetual over him at the time of his birth was exclusive of that and unchangeable allegiance to the government of of any other country. one's birth, attending the subject wherever he goes, The clause as to citizenship was inserted in the has never taken root in this country, although there amendment not merely as an authoritative declaration are judicial dicta that a citizen cannot renounce his of the generally recognized law of the country so far allegiance to the United States without the permis- as the white race is concerned, but also to overrule the sion of the government, under regulations prescribed doctrine of the Dred Scott case, affirming that persons by law; and this would seem to have been the opinion of the African race brought to this country and sold of Chancellor Kent when he published his commen- as slaves, and their descendants, were not citizens of taries. But a different doctrine prevails pow. The the United States nor capable of becoming such. The naturalization laws have always proceeded upon the clause changed the entire status of these people. It theory that any one can change bis home and allegi- lifted them from their condition of mere freedmen and ance without the consent of his government. And we conferred upon them, equally with all other nativeadopt as citizens those belonging to our race, who com• born, the rights of citizenship. When it was adopted ing from other lands, manifest attachment to our in- the naturalization laws of the United States excluded stitutions, and desire to be incorporated with us. So colored persons from becoming citizens, and the freedprofoundly convinced are we of the right of these im- men and their descendants, not being aliens, were migrants from other countries to change their resi- without the purview of those laws. So the inability dence and allegiance, that as soon as they are natural- of persons to become citizens under those laws in no ized they are deemed entitled, with the native- born, respect impairs the effect of their birth, or of the birth to all the protection which the government can ex- of their children, upon the status of either as citizens tend to them wherever they may be, at home or abroad. under the amendment in question. And the same right which we accord to them to be- Independently of the constitutional provision, it has come citizens here, is accorded to them as well as to always been the doctrine of this country, except as apthe native-born, to transfer their allegiance from our plied to Africans brought here and sold as slaves and government to that of other States.
their descendants, that birth within the dominions In an opinion of Attorney-General Black, in the and jurisdiction of the United States of itself creates case of a native Bavarian, who came to this country, citizenship. This subject was elaborately considered and after being naturalized returned to Bavaria, and by Assistant Vice-Chancellor Sanford in Lynch v. desired to resume his status as a Bavarian, this doc- Clarke, found in the first volume of his reports. In trine is maintained. “There is," he says, "no statute that case one Julia Lynch, boru in New York, in 1819,