The writ of habeas corpus in thеse eases was allowed and issued on June 25, 1888, and they were heard together on the same day.
The petition of Chin .King statеs that she was horn in San Francisco, Cal., on October 10, 1868; while that of Chan San Hee states that she was born in Portland, Or., on March 15, 1878; and they each state that, they are restrained of their liberty by William Robert Laird, the master of the British hark Kitty, because the collector of customs for this port refuses to allow them to land from said hark, on the ground that the petitioners are Chinesе, and have no return certificate, a,- required by the act of congress on that subject: but they aver that they are native-born citizens of the United States, and therefore not included within the terms of said act.
The return of the master to each writ states that the Kitty sailed from Hong Kong for Portland, on April 19, 1888, and that the petitioners were passengers thereon during said voyagе, and are now in custody on board the same, for the reasons stated in the petitions.
On application the United Statеs district attorney was allowed to intervene on behalf of the United States, and allege that he had no knowledge or information sufficient to form a belief as to whether the petitioners were born in the United States, as alleged, or not.
On the hеaring it appeared that Chung Yip Gon is a Chinese merchant, who has lived and done business in this city for the past 13 years and for 12 yеars prior thereto in San Francisco; that he was married in San Francisco about 23 years ago, and-the petitioners are his daughters, the older one having been born in San Francisco, and the younger one in Portland, and that in 1881 the father sent thеm and their mother to China, from whence they were to return when they pleased.
By (he common iaw, a child horn within the allegiance—-the jurisdiction—of the United States, is born a subject or citizen thereof, without reference to the political status or condition of its parents. McKay v. Campbell,
The viсe-chancellor, after an exhaustive examination of the .law, declared that every person born within the, dominiоn and allegiance of the United States was a citizen thereof, without reference to the situation of his parents! This, оf course, does not include the children born in the United States of parents engaged in the diplomatic service of foreign governments, whose residence, in contemplation of public law, is a part of their own country.
The rule of the сommon iaw on this subject has been incorporated into the fundamental law of the land. The fourteenth amendment deсlares:
. In Re Look Tin Sing,
Mr. Justice Field, in delivering the opinion of the court, in which Sawyer, Sabin, and Hoffman concurred, says, (p. 359:) “The inability of persons to become citizens under those laws (of naturalization) in no respect impairs the effect of their birth, or of the birth of their children, upon the status of either, as citizens of the United States.”
. The only point made by the district attorney against the petitioners on the question of their-citizenship is that they left this country without, as he claims, any definite or fixed purpose to return.
But I think the evidence does not warrant so strong a statement. For aught that appears they intended to return; and the fact that they have returned gives strength to the inference. The most that can be said is, there was no time fixed for thеir return. And that is the case with hundreds of minor American citizens, who go abroad yearly, for nurture and education. But it seems that the citizenship of the petitioners would not be affected by the fact, if they had never come back, unless it also apрears that they had in some formal and affirmative way renounced the same.
However, in my judgment, a father cannot deprive his minor child of the status of American citizenship, impressed upon it by the circumstances of its birth under the constitution and within the jurisdiction of the United States. This status, once acquired, can only be lost or changed by the act of the party when arrived at majority, and the consent of the government.
By section 2 of article 4 of the constitution it is provided; “The citizens of each state'shall be entitled to all privileges and immunities of ■citizens in the several states.”
It has always been held that the privileges and immunities there referred to are fundamental; and that a citizen of one state may, at least, under this provision, pass through or reside in any other state of the Union for the ordinary pursuits or purposes of life. Corfield. v. Coryell,
The action of the collector in these cases has the effect, and is so intended, to deny these citizens of the United States the right of free locomotion within the same,—the right to come into, passthrough, or reside in this state, and is therefore contrary to and in violation оf the constitutional provision guarantying such right to every citizen. Sections 751, 752, and 753 of the Revised Statutes provide, in effect, thаt the courts
The petitioners, as we have sеen, are restrained of their liberty in violation of the constitution, and therefore this court has jurisdiction to discharge them on a habeas corpus.
The petitioners are discharged from custody.