The San Francisco call. [volume] (San Francisco [Calif.]) 1895-1913, 1895-06-21
JUDGE FIELD CRITICIZED,
Attorney Collins Reply to the
JuriSt'S Recent Com
mentS
ON CITIZENSHIP BY BIRTH
This Important Question Has Ex-
cited a Great Deal of Interest
on All Sides.

Lie dItlClS eHtlUlGu 'ClIlZSHSIllp w
Birth, by George D. Collins, an attorney
of this City, which appeared in the cur
rent number of the American Law Review
and regarding which mention was made
IN recent number of the CALL, has been
the cause of much comment and express
sion of opinion from attorneys.
While the present discussion has been
brought about by the raising of the ques-
ton OF the right of q child born of Chinese
parents to be admitted to citizenship, yet
1t is one that would seem to strike. deep
into the standing of thousands of voters,
the sons of foreign parents, and who have
never taken out naturalization papers, and
be very pertinent to the question OF major
tiles IN the various political parties.
From various opinions quoted, 1t would
appear that the common law view of the
matter as obtains in England and coun-
tries of early feudal government was, to a
great extent, held throughout the United
states PRIOR to the adoption of the four
tenth amendment to the constitution. 1t is
a question that should be brought up for
ea-ly decision TO the Supreme Court,
which as body has placed itself on record
as having doubts Of the intention of the
constitutional amendment to indicate
sweeping acceptance of all persons born
within the United States
In the case of Minor VS.. Happerset, de-
clded In 1874 some time after the Slaughter
house cases So-called, it held: Some
authorities go further and include as citi-
zens children born within the jurisdiction
without reference to the citizenship of
their parents. As to this class there have
been doubts. For the purposes of this case
1t is not necessary to solve these doubts"
Secretary Marcy, i'll instructions given in
1854, said: ~ have observed that according
to the common law, any person born in
the United States, unless he be born in
one of the foreign legations therein, may
be considered a citizen thereof until he
formally renounces his citizenship"
Secretary Fish also said, in 1873: $50 far
as concerns our own local laws, child
born in the United States to British sub
ject is citizen of the United States; and
in a letter to Mr.. Cushing in 1877 also
said: ''The minor child of Spaniard born
in the United States and while in the
United States is citizen of the United
States"
Secretary Blaine some years later also
said: "The child born to an alien in the
United States loses his citizenship on
leaving the United States, and returning
to his parents allegiance"
Justice Swayne of Kentucky held similar
views, as did Secretary Frelinghuysen,
who afterward changed them.
Against this array OF competent author
ity and opinion is the decision of Judge
Lippincotr, declaring against a resi-
dent of Brooklyn whose father was unaat-
uralized and the opinion of Justice Gray
delivered in the Supreme Court regarding
an Indian. A member of prominent law
firm, in commenting on the subject and
the stand taken by Justice Field in favor
of the unnaturalized citizen mentions in
reference to Justice Brewer of the Supreme
bench, who is nephew of Judge Field.
that Justice Brewer himself was born in
the Holy Land OF American parents, and
under the decision of his uncle, as laid
down in the case of Look Tin Sing, would
not be competent to hold his high posi-
ton, and would thus lose to America one
of her most able and eminent Judges.
Mr.. Collins was seen at his office yester-
day, and when shown Judge Fields re-
marks said:
am not surprised at Judge Fields criticism.
1t was not TO be expected that he would tolerate
any questioning of the correctness of his ipse
dixit. His supreme veneration for his own
opinion is matter of common knowledge, and
of course he brooks no dissent from his views
The great tribunal OF which he S an Associate
Justice has with sufficient emphasis and repe-
tition proved his views OF the law generally so
radically erroneous that he himself has every
reason to be cautious and tolerant in criticizing
the judgments of others, and yet, perhaps, that
is too much to expect OF one who declares thai
MS continuance OH the DelCn long AFTER the
allotted age is due to the fact that there is no
lawyer on the Pacific Coast who is competent
to be his successor, although | am at a loss to
perceive why that should concern him, even if
1t were true.
Now, as to the great question of citizenship
involved in this controversy. In 1884 l con-
tributed to the American Law Review an
article upon the question "Are Persons Born
Within the United States Ipso Facto Citizens
THEREFOR" And in that article the law was
proved to be that such birth did not entitle
IA m ncH lin ftnr or,6 ~,
same year Judge Field decided the contrary in
the case of the Chinaman Look Ting Sing.
Before that decision was made Judge Sawyer,
who was then Circuit Judge, and before whom
the question was pending, interviewed me in
reference to the article had written, and told
me that he fully appreciated the Importance of
the question presented and felt that the case
would have to go to the Supreme Court so that
the question might be put at rest for all time.
He also stated that his court would do
everything necessary to facilitate h decision bv
the court of last resort, and to that end he
would dissent from Judge Fields views so that
the question might be taken up on certificate
OF division OF opinion. 1t was thus arranged
that the question in that case should be re-
ferred to the Supreme Court, but when it came
to the decision Judge Sawyer concurred with
Judge Field, and of course that prevented the
execution of the arrangement just mentioned
Then, by reason either of Indifference on the
pant OF the people of this State or belief in the
infallibility OF Judge Field, his decision was
allowed to operate as a correct exposition of
the law, and for the past ten years Chinese
children born in this country have been held
to be citizens and they have eagerly avaied
themselves of their prerogative as such. even
to the extent of voting at our elections, and
strange to relate, not one of our public officers
has ever thought of disputing their right
Tho evil effects of Judge Fields decision
have now become so virulent and diffusive
that the necessity for ruling by the supreme
Court defining what constitutes natiye-born
citizen has become one of pressing urgency,
and no portion of the Nation is more concerned
in having an early adjudication of the ques-
ton than the people of California. Nor is there
any uncertainty as to what will be the de-
cision. On three different occasions the Su-
preme Court of the United States has ex-
pressed the law upon this subject at
entire variance with the views of
Judge Field, and under those rulings Chinese
children born in this country are not citizens
and cannot be such under the principles OF
constitutional and international law In the
article have written and which is published
in the current number of the American Law
Review, being my second article on the sub
ject, have fully discussed the law and cited
ample authority. sustaining my position and
when it is borne in mind that judge Fields de-
cision is nothing more than his dissenting
opinion in the famous slaughter-house cases.
where he disagreed with the Supreme Court
on the very point at issue, no one will nave the
N iS pisiO