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to a long line of decisions, that the contracts were New York contracts. Cotheal v. Blydenburgh, 1 Hal. Ch. 17; S. C., id. 631; De Wolf v. Johnson, 10 Wheat. 367; Dolman v. Cook, 1 McCart. 56; Campion v. Kille, id. 229; S. C., 2 id. 476; Atwater v. Walker, 1 C. E. Gr. 42.
Where contracts of a particular kind are forbidden by the law of the State in which they are sought to be enforced, and the party seeking to enforce them relies upon the fact that they were made in a foreign State, and are valid contracts by the lex loci contractus, it has been held elsewhere that he is bound to aver and prove those facts. Thatcher v. Morris, 11 N. Y. 437.
But the rule which seems to have been established in this State requires one who defends against a foreign contract, if he relies on its being invalid by force of the lex loci contractus, to both set up and prove the foreign law. Campion v. Kille, ubi supra; Dolman v. Cook, ubi supra; Uhler v. Semple, 5 C. E. Gr. 288.
We have then to deal with transactions which took place within the State of New York, and must be presumed to be governed by the laws of that State. Whatever may be the rule respecting the burden of setting up and proving the law of the foreign State under such circumstances, neither appellants nor respondent have furnished in their pleadings or proofs any information on the subject. In the absence of proof of the law of another State, the better opinion is, that at least with respect to States comprised in the territory severed from England by the revolution, the presumption is that the common law prevails. White v. Knapp, 47 Barb. 549; Stokes v. Macken, 62 id. 145; Holmes v. Broughton, 10 Wend. 75; Thurston v. Percival, 1 Pick. 415; Shepherd v. Nabors, 6 Ala. (N.S.) 631; Walker v. Walker, 41 id. 353; Thompson v. Monrow, 2 Cal. 99; Inge v. Murphy, 10 Ala. 885; Norris v. Harris, 15 Cal.226; Titus v. Scantling, 4 Black f. 89; Crouch v. Hall, 15 Ill. 263; Brown v. Pratt, 3 Jones (N. C.) Eq. 202.
By the common law contracts of wager and similar contracts were not objectionable per se. They were in fact enforced by the courts without any objection on the score of being dependent on a chance or casualty. Courts did in some instances refuse to enforce such contracts, but only when the subject of the wager was objectionable, as tending to encourage acts contrary to sound morals (Gilbert v. Sykes, 16 East, 150); or being injurious to the feelings or interest of third persons (Da Costa v. Jones, Cowp. 729), or against pub. lic policy or public duty. Atherfold v. Beard, 2 T. R. 610; Tappenden v. Randall, 2 B. & P. 467; Shirley v. Sankey, id. 130; Hartley v. Rice, 10 East, 22.
It has not been urged, nor does there seem to be ground for contending, that the transactions in question were such as by the common law would not be enforced.
We are therefore required to determine whether these contracts, made in the State of New York, and presumed to be governed, as to their validity, by the doctrines of the common law, and not objectionable thereunder, are to be enforced in this State.
The common law under which such contracts were enforceable has been here altered by the passage of the act against gaming above reterred to. By the first section all wagers, bets or stakes made to depend on any lot, chance, casualty or unknown or contingent event are declared to be unlawful. By the third section all bonds, mortgages, or other securities made or given, where the whole or any part of the consideration shall be for money laid or betted in violation of the first section, or for repaying money knowingly advanced to help or facilitate such violation are declared to be utterly void.
If the contracts now sought to be enforced would be obnoxious to these provisions of our statute, if made in this State, are we to enforce them because made in
New York, where we are bound to presume the common law exists unaltered?
The enforcement of a foreign law and contracts dependent thereon for validity, within another jurisdiction and by the courts of another nation, is not to be demanded as a matter of strict right. It is permitted, if at all, only from the comity which exists between States and nations. Every independent community must judge for itself how far this comity ought to extend. Certain principles are well nigh universally recognized as governing this subject. It is everywhere admitted that a contract respecting matter malum in se, or a contract contra bonos mores, will not be enforced elsewhere, however enforceable by the lex loci contractus. An almost complete agreement exists upon the proposition that a contract valid where made will not be enforced by the courts of another country, if in doing so, they must violate the plain public policy of the country whose jurisdiction is invoked to enforce it, or if its enforcement would be injurious to the interest or conflict with the operation of the public laws of that country. Story's Confl. Laws, § 244; 1 Add. Cont., § 241; Forbes v. Cochrane, 2 B. & C. 448; Grell v. Levy, 16 C. B. (N. S.) 73; Hope v. Hope, 8 De G., M. & G. 731; 2 Kent Com. 475; Bank of Augusta v. Earle, 13 Pet. 519; Ogden v. Saunders, 12 Wheat. 213; Blanchard v. Russell, 13 Mass. 1. This proposition has been announced and applied in our own State. Varnum v. Camp, 1 Gr. 326; Frazier v. Fredericks, 4 Zab. 162; Moore v. Bonnell, 2 Vroom, 90; Bentley v. Whittemore, 4 C. E. Gr. 462; Watson v. Murray, 8 id. 257; Union L. & E. Co. v. Erie R. Co., 8 Vroom, 23.
Since the courts of each State must, at least in the absence of positive law, determine how far comity requires the enforcement of foreign contracts, it results that there is contrariety of view, and the proposition above stated is not universally admitted. Thus in New York a contract made in Kentucky, under a law of that State, establishing a lottery for the benefit of a college, was upheld, notwithstanding the law of New York prohibiting lotteries. Com. of Ky. v. Bassford, 6 Hill, 526.
Chief Justice Nelson limited the cases of contracts not enforceable, though valid where made, to such as are plainly contrary to morality. He gave no consideration to the doctrine elsewhere settled, that excludes from enforcement contracts opposed to the public policy or violative of a public law of the place of enforcement. In this view he seems to be sustained by the Court of Appeals. Thatcher v. Morris, 11 N. Y. 437.
So in Massachusetts a contract arising out of a completed sale of lottery tickets, in a State where such sale was lawful, was enforced by the courts, although such sale was there prohibited by statute. McIntyre v. Parks, 3 Metc. 207. But there was no discussion of principles by the court.
The courts of this State have expressed and enforced different views. Thus in Varnum v. Camp, 1 Gr. 326, the question of the validity of a foreign assignment for the benefit of creditors came before the Supreme Court. The assignment was made in New York, and was assumed to be valid by the law of that State. It created preferences, and by the law of this State was fraudulent and void. The assignment was held unenforceable here. Chief Justice Ewing, whose opinion was adopted by the court, puts the decision distinctly upon the ground that the assignment was one in violation of the policy of our laws, in hostility with their provisions, and which they declared to be fraudulent and void.
In Bentley v. Whittemore, 4 C. E. Gr. 462, a similar question arose in this court, and the doctrine of Varnum v. Camp was restated and affirmed. The application of the doctrine was however limited to the protection of the residents and citizens of this State, for
whose benefit its public policy was held to be adopted. With respect to non-residents or citizens of other States it was held that comity would require the recognition of foreign assignments if valid where made. Watson v. Murray, ubi supra, was the case of a bill filed for an account of a partnership transaction in a lottery in another State, where such a transaction was claimed to be lawful. The bill was dismissed on the advice of Vice-Chancellor Dodd. His conclusion was that such a transaction, though valid where made, should not be enforced here, because it was in violation of a public law of this State, and within the exceptions to the rule of comity requiring the enforcement of foreign contracts. He further argued that lotteries are not only illegal, but are judicially considered to be immoral. It is unnecessary to determine how far that view can be sustained. But with the conclusion arrived at I unhesitatingly agree. It is in accord with the decisions in Varnum v. Camp and Bentley v. Whittemore. It seems to me that no court can, on full consideration, deliberately adopt a rule that will require the enforcement of foreign contracts, violative of the public laws and subversive of the distinct public policy of the country whose laws and policy they are bound to enforce. No comitas inter communitates can compel such a sacrifice.
The limitations on the rule laid down in Bentley v. Whittemore do not come in question in this case. It appears that Mrs. Flagg was, in fact, a resident of this State at the time these contracts were made, and there is nothing to show a change of residence.
We are brought then to the question whether our law against gaming is such a public law and establishes such a public policy as to require us to refuse to enforce foreign contracts in conflict with it in a case like that under consideration. I think this question must be answered in the affirmative.
It is true that in Dolman v. Cook and Campion v. Kille, ubi supra, foreign contracts, valid by the law of the State where made, were enforced here, although by our law they were usurious and declared to be void. No consideration seems to have been given to the question whether our usury law was such a law and evinced such a public policy as required us to refrain from enforcing foreign contracts in conflict with it. As we have seen, that consideration led our courts to reject foreign assignments violative of our laws where the interests of our own citizens were concerned. But a plain distinction at once presents itself between a usury law and a law regulating assignments for the benefit of creditors, or a law against gaming. One affects only the parties to the contract, and is framed for the protection of the borrower. The others relate to the public or classes of the public who are interested therein and affected thereby.
It remains to determine whether the enforcement of these contracts will conflict with the provisions of this statute and the public policy thereby established. If so, it must be for the reason that the mortgage secures an indebtedness arising out of transactions that are wagers.
In considering this question, care should be taken not to trench upon legitimate and proper enterprises. The act is not intended to interfere with the right of buying and selling for speculation.
The line is to be drawn between what is legitimate speculation and what is unlawful wager. When property is actually bought, whether with money or with credit, the purchaser and owner may lawfully hold it for a future rise and risk a future fall. With such transactions the law does not pretend to interfere. They are within the line of lawful speculation.
But when either without any disguise or under a guise which stimulates such legitimate enterprises, the real transaction is a mere dealing in the differences between prices, i. e., in the payments of future profits or future losses, as the event may be, then in my judgment, the line which separates lawful speculation from illegal wagering is crossed, and the contract, under our law, becomes unlawful, and the securities for it void.
This proposition is sustained by all the cases, without an exception, that I can discover. The only disagreement relates to the application of the doctrine.
Thus in New York, the Court of Appeals, in Kingsbury v. Kirwan, 77 N. Y. 612, declared that a contract for the purchase and sale of property would be a wagering contract, if it was the understanding that the property should not be delivered, but that only the difference in the market price should be paid and received.
In Bigelow v. Benedict, 70 N. Y. 202, the same view had been expressed, and it was also held that although the form of the contract was unobjectionable, yet if in fact it was a mere cover for betting on the future price of a commodity, and no actual sale or purchase was intended, the contract was one of wager.
It is true that the same court has determined, though against the protest of able and distinguished judges, that between the broker purchasing on a margin and his customer, the relation of principal and agent and of pledgor and pledgee exists. Markham v. Jaudon, 41 N. Y. 235; Baker v. Drake, 66 id. 518; Gruman v. Smith, 81 id. 25.
It has been there held that a broker can recover from his customer deficiencies arising from sales of stocks bought on a margin, and that where, upon a margin, a broker made "short sales" of stock, which he borrowed for that purpose, he might recover of his customer what was expended in replacing the borrowed stock. Wicks v. Hatch, 62 N. Y. 535; Knowlton v. Fitch, 52 id. 288. But in these cases it does not seem to have been contended that the contract was a mere cover for wager. Such contention was made in King
But our law against gaming goes further than to merely prohibit the vice or avoid contracts tainted with it. It declares it unlawful, and so puts the contracts beyond the protection of the law or the right of appeal to the courts. The reason and object of the 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, to the injury of those dependent on him, or who are to succeed to him. It has its more public aspect, for if it be announced that a trustee has been false to his trust, or a public officer has embezzled public funds, by common consent, the first inquiry is whether the defaulter has been wasting his property in gambling.
In my judgment, our law against gaming is of such a character, and is designed for the prevention of a vice, producing injury so widespread in its effect, the policy evinced thereby is of such public interest that comity does not require us to here enforce a contract, which by that law is stigmatized as unlawful, and so prohibited.
held that there was no sufficient evidence that the transactions were not real. Upon a review of all the cases in New York, they establish, in my judgment, the correct doctrine that a contract relating to differences only would be a wager contract. But they also hold that dealings on margin are not to be considered as dealings in mere differences. If in any case, evidence sufficient to show that the margin dealings were mere covers for dealings in differences was produced, then upon the principles there laid down, the contracts would be wagers.
In the courts of Pennsylvania, the same principles have been often enunciated. Thus in Smith v. Bouvier, 70 Penn. St. 325, the court approved a charge to a jury
which left to them to say whether the transactions embraced in the case were bona fide or were mere covers for gambling operations. See also Fareira v. Gabell, 89 Penn. St. 89.
And in general, whenever the verdict of a jury established, or the evidence required the court to hold, that the transactions, however correct in point of form, were mere dealings in differences, they were declared to be wagers. Brua's Appeal, 55 Penn. St. 294; Kirkpatrick v. Bonsall, 72 id. 155; Maxton v. Gheen, 75 id. 166; North v. Phillips, 89 id. 250; Dickson v. Thomas, 97 id. 278; Ruchizky v. De Haven, id. 202; Patterson's Appeal, 16 Rep. 59.
The point of divergence between the New York and Pennsylvania cases is upon the relation existing between the customer and the broker who is managing a speculative account upon a margin. The New York cases treat the broker as a mere agent, and so as a pledgee of the stocks purchased on such an account. This result was reached by a divided court, Justices Grover and Woodruff delivering vigorous dissenting opinious. The latter especially points out in a perspicuous, and in my judgment, convincing way, the plain difference between a stock broker dealing on margius and a broker or agent in ordinary transactions. Markham v. Jaudon, 41 N. Y. 256.
In Pennsylvania, it is held that one who enters into a stock speculation on margins, with a stock broker, is to be considered as dealing with the broker as a principal, and not as an agent. Ruchizky v. De Haven, supra. This view is, in my judgment, entirely correct. The customer who deals on margins knows no other person in the transaction but the broker. He has no claim upon, and is subject to no liability to any other person whatever.
The same doctrine has been announced by the Supreme Court of the District of Columbia (Justh v. Holliday, 2 Mack. 346), and by the United States Circuit Court in the District of Kansas. Cobb v. Prell, 22 Am. L. Reg. (N. S.) 609. To the latter case a note is appended, discussing the subject and collecting many cases.
In Grizewood v. Blane, 11 C. B. 526, it was held that a colorable contract for the sale and purchase of railway shares, when neither party intends to deliver or accept the shares, but merely to pay differences according to the rise and fall of the market, was a gaming contract, within the 8 and 9 Vict., ch 109, § 18, which declares contracts by way of gaming and wagering void, and forbids recovery of any money won on a wager. The subsequent case of Thacker v. Hardy, 4 Q. B. Div. 685, does not shake the authority of Grizewood v. Blane, but expressly approves it. Since however, in the case of Thacker v. Hardy, a broker was permitted to recover of his customer indemnity for contracts entered into on a speculative account, although the broker knew the customer did not intend to accept the stock bought or deliver the stock sold for him, but expected the broker to so arrange matters that nothing but differences were to be payable by him, it has been much relied on by respondent's counsel. But in that case the broker was treated as a mere agent entering into contracts for his principal, and so entitled to indemnity against any personal liability thereon. The ground of decision was that the contract, as between the customer and the other principal (the stock broker being treated as mere agent), was at the most void, but not illegal, and that the broker's right of indemnity was not affected thereby. Thus, Lindsley, J., by whom the case was tried without a jury, says that: "If gaming and wagering were illegal, I should be of opinion that the illegality of the transactions in which the plaintiff and defendant were engaged, would have tainted, as between them, whatever plaintiff had done in furtherance of their illegal designs, and would
have precluded him from claiming, in a court of law, any indemnity from the defendant in respect of liabilities incurred." He points out that it had been held under the English act of 8 and 9 Vict., above cited, that although gaming and wagering contracts could not be enforced, they were not illegal. He draws the conclusion that the acts of the broker, not being in furtherance of an illegal transaction, and being directed by the customer, entitled him to indemnity against loss thereby. On appeal, the views of the trial judge were approved.
It will be observed that our statute declares such contracts not only void, but unlawful, and further, that the relation of agency between the customer and broker, in such transactions on which the decision was grounded, is not, by the weight of authority in this country, recognized as the real relation of the parties. For reasons above given, I think it clear that the customer and broker, in these margin transactions, deal as two principals, and not as principal and agent.
My conclusion is that these transactions, so far as affected by our law against gaming, are to be examined, to discover their real nature, and if however unobjectionable their form may be, the real contract is merely in respect to differences, the contract is a wager, both void and unlawful.
On examining the transactions in question in this cause, with a view to discover their real character, I am compelled to the conclusion, that however they may have been made to imitate real transactions, they were in fact mere wagers. It never was contemplated, intended or agreed, by either party, that the stocks purchased or sold were to become or to be treated as the stocks of appellants. The real contract disclosed by the evidence was to receive and to pay differences.
All the transactions were upon margins. They commenced by Flagg's depositing $1,000 with respondent, when he agreed to open the account, which was wholly a speculative account. Afterward Flagg deposited $300 more. Then the wife's note for $4,500 was put in, and the account transferred to her name. Finally the bond and mortgage were given.
Upon these advances the purchases were very large. Respondent testifies that upon the margin of $1,300, stocks of a cash value of about $450,000 were purchased for the account between January 28 and June 16, 1880. After the account was transferred to Mrs. Flagg's name, stocks to an amount between $600,000 and $700,000, were purchased between June 16, 1880 and March 17, 1881. Thus in less than fourteen months purchases aggregating over $1,000,000 were made. According to Flagg's statement, the account once held one thousand three hundred shares, of a par value of $1,300,000.
The certificates of the stocks were never transferred or delivered to appellants.
These enormous trausactions were far beyond the ability of appellants at any time, and were known to be so. It appears that respondent was notified that the first advance was all that Flagg had to speculate with. The wife's note, and subsequently her bond and mortgage, were resorted to with the avowed purpose of binding her separate property. Respondent admits that he was informed and knew that Flagg was speculating for all that Mrs. Flagg and he had in the world.
Under such circumstances, it isfidle to pretend that there was or could be any hope or expectation that appellants were to take or could be required to take these vast amounts of stock. For respondent to have tendered them, and demanded payment for them, would have been absurd in the extreme. The whole circumstances show that no such right to tender entered into
the transaction. On the contrary, the contract plainly was that if the stocks bought advanced, the profit was to be realized by a sale. If they declined, the remedy of respondent to save himself was by a sale. The settlement was to be of the profits and losses thus ascertained.
If in the absence of express stipulation, the reciprocal rights of tendering and demanding this stock would be presumed to enter into such a contract, the whole circumstances corroborate the testimony of Flagg, who swears that it was expressly understood that there was not to be any actual delivery of stocks, and that he should not be required to pay for them.
In the able opinion below, much stress is laid on the fact that the purchases and sales for this account were actually made by respondent. He so testifies, and produces vouchers in corroboration of his statement. That the transactions were very large, and upon a petty advance, is not sufficient probably to permit us to reject this positive statement. But assuming it to be true that respondent actually purchased or sold every share of stock in this account, I am unable to perceive how the circumstance affects the conclusion in this case. If respondent was the mere agent of the appellants in transactions with third parties, there might be some significance attached to it. But such is not, as we have seen, the real nature of the relation between the parties. They were dealing, as to this transaction, as principals, and it was a matter of indifference whether respondent owned or bought the stock he agreed to carry. The transaction was precisely like that which Judge Woodruff, in the disseuting opinion in Markham v. Jaudon, characterized as "an executory agreement for a pure speculation in the rise and fall of stock, which the broker, on condition 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, and holding him responsible for the losses." Such an agreement is within the principles above referred to, a
Nor is the result altered by the fact that the broker has or attempts to retain perfect indemnity against loss on his part. As I interpret the transactions, re ́spondent, in consideration of commissions and interest on advances, agreed to buy and hold stock in anticipation of a rise; or to sell stock of his own, or borrowed for that purpose, in anticipation of a fall. The agreement required him to pay the profits of the transaction, which would otherwise be his, to appellants. On the other hand, appellants, in consideration of his thus carrying the stock bought, or providing the stock sold, agreed that in case of a rise or fall to a certain amount, the stock should be closed out, and the loss, which otherwise would fall on respondent, should be paid by them to him. This bargain contained all the elements of a wager. It is not less a wager because one of the parties obtained a guaranty for the performance of the bargain by the other party.
For these reasons my conclusion is that the transactions in question were wagers within the meaning of our law; that the securities given for them would be absolutely void if the contracts were made in this State; that although made in a foreign State, and not objectionable by the law which must be presumed (in the absence of proof) to govern them, they will not be, and ought not to be enforced in this State between these parties, because to enforce them would be opposed to a public policy on this subject of the vice of gaming, perspicuously shown by our law on that subject.
The decree below must be reversed, and a decree entered dismissing the bill. Appellants are entitled to their costs.
CITIZENSHIP OF A PERSON BORN IN THE
UNITED STATES OF CHINESE PARENTS.
UNITED STATES CIRCUIT COURT OF CALIFORNIA. SEPTEMBER 29, 1884.
IN THE MATTER OF LOOK TIN SING, ON HABEAS CORPUS.
A person born within the United States of Chinese parents residing therein, and not engaged in any diplomatic or official capacity under the Emperor of China, is a citizen of the United States.
Persons are subject to the jurisdiction of the United States who are within their dominions and under the protection of their laws, with the consequent obligation to obey them when obedience can be rendered; but only those who are thus subject by their birth or naturalization are within the terms of the amendment. The jurisdiction over these latter must at the time be both actual and exclusive. Persons excepted from citizenship, notwithstanding their birth or naturalization in the United States.
Previous to this amendment, the general doctrine, except as applied to Africans brought here and sold as slaves, and their descendants, was that birth within the dominions and jurisdiction of the United States, of itself created citizenship. The amendment was adopted as an authoritative declaration of this doctrine as to the white race, and also to do away with the exception as to Africans and their descendants.
The acts of Congress of 1882 and 1884, restricting the immigration of Chinese laborers to the United States, are not applicable to citizens of the United States, though of Chinese parentage. No citizen can be excluded from the United States except in punishment for crime.
APPLICATION for a writ of habeas corpus. The
opinion states the facts.
Before Circuit Justice Field, Circuit Judge Sawyer, and District Judge Sabin.*
T. D. Riordan and William M. Stewart, for petitioner.
S. G. Hilborn, United States Attorney, Carroll Cook, Assistant United States Attorney, and John N. Pomeroy, for United States.
FIELD, C. J. The petitioner belongs to the Chinese race, but he was born in Mendocino, in the State of California, in 1880. 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 do so as a natural born citizen of the United States. 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 his father sent the petitioner to China, but with the intention 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 with out any certificate, under the act of 1882 or 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
*Judge Hoffman did not sit on the hearing of this case, but he was on the bench when the opinion was delivered, and concured in the views expressed.
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." They alone are subject to the jurisdiction of the United States who are within their dominions and under the protection of their laws, and with the consequent obligation to obey them, when obedience can be rendered; and only those thus subject by their birth or naturalization are within the terms of the amendment.
The jurisdiction over these latter must at the time be both actual and exclusive. The words mentioned except from citizenship 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 extra-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.
Persons born on a public vessel of a foreign country, whilst within the waters of the United States, and consequently within their territorial jurisdiction, are also excepted. They are considered as born in the country to which the vessel belongs. In the sense of public law, they are not born within the jurisdiction of the United States.
The language used has also a more extended purpose. It was designed to except from citizenship persous, who though born or naturalized in the United States, have renounced their allegiance to our government, and thus dissolved their political connection with the country. The United States recognize the right of every one to expatriate himself and choose . another country. This right would seem to follow from the greater right proclaimed to the world in the memorable document in which the American Colonies declared their independence and separation from the British Crown, as belonging to every humau beingGod-given and inalienable-the right to pursue his own happiness. The English doctrine of perpetual and unchangeable allegiance to the government of one's birth, attending the subject wherever he goes, has never taken root in this country, although there are judicial dicta 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 citizens those belonging to our race, who coming from other lands, manifest attachment to our institutions, and desire to be incorporated with us. So profoundly convinced are we of the right of these immigrants from other countries to change their residence and allegiance, that as soon as they are naturalized they are deemed entitled, with the native- born, to all the protection which the government can extend to them wherever they may be, at home or abroad. And the same right which we accord to them to become citizens here, is accorded to them as well as to the native-born, to transfer their allegiance from our government to that of other States.
In an opinion of Attorney-General Black, in the case of a native Bavarian, who came to this country, and after being naturalized returned to Bavaria, and desired to resume his status as a Bavarian, this doctrine is maintained. "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, afterward claim from him any of the duties of a citizen." Opinions of Atty. Gens., vol. 9, 62.
The doctrine thus stated has long been received in the United States as a settled rule of public law; and in the treaty of 1868 between China and this country, the right of man to change his home and allegiance is recognized as "inherent and inalienable. Art. 5, 16 Stats. 740. And in the recital of an act of Congress passed nearly at the same time with the signing of the treaty, this right is assumed to be "a natural and inherent right of all people, indispensable to the enjoyment of the rights of life, liberty, and the pursuit of happiness;" and in the body of the act, any declaration, instruction, opinion, order or decision of any officers of this government which denies, restricts, impairs or questions the right of expatriation," is declared to be "inconsistent with the fundamental principles" of our government. 13 Stats. 223; Rev. Stat., § 1999.
So therefore 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 thenceforth cease to be 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 being a citizen. He is not within any of the classes of persons excepted from citizenship; and the jurisdiction of the United States over him at the time of his birth was exclusive of that of any other country.
The clause as to citizenship was inserted in the amendment not merely as an authoritative declaration of the generally recognized law of the country so far as the white race is concerned, but also to overrule the doctrine of the Dred Scott case, affirming that persons of the African race brought to this country and sold as slaves, and their descendants, were not citizens of the United States nor capable of becoming such. The clause changed the entire status of these people. It lifted them from their condition of mere freedmen and conferred upon them, equally with all other nativeborn, the rights of citizenship. When it was adopted the naturalization laws of the United States excluded colored persons from becoming citizens, and the freedmen and their descendants, not being aliens, were without the purview of those laws. So the inability of persons to become citizens under those laws in no respect impairs the effect of their birth, or of the birth of their children, upon the status of either as citizens under the amendment in question.
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 v. Clarke, found in the first volume of his reports. In that case one Julia Lynch, born in New York, in 1819,