The San Francisco call. [volume] (San Francisco [Calif.]) 1895-1913, 1896-01-04

| descent and subjects OF the Emperor OF CHINA,
but at the time OF the birth were both domi-
ciled residents OF the United States, is citizen
within the meaning of that part OF the four
teenth amendment of the constitution which
provides that call persons born or naturalized
in the United States and subject to the juris-
diction thereof are citizens OF the United States
and OF the States wherein they reside"
At once he proceeds logically with the
contentious made by Messrs. Foote and
Collins against Wong's right to citizen
ship. Mr.. Collins position was that the
doctrine of international law as to citizen
ship exists in the United States and not
that of the common law, and that the
citizenship clause of the fourteenth
amendment is in consonance with the in
ternational law and should be so inter-
preted
To give a synopsis of the argument, as
Judge Morrow viewed it, OF the Govern
ment's counsel, the logic was thus: First,
Wong Kim Ark was not subject to the po-
litical jurisdiction of the United States;
second, according to the rule Of interna-
tional law the political status of the child
follows that of the parents; third, the
mere fact OF birth in this country does not.
ipse facto, confer any right of citizenship.
SO much for the postulate. In support of
1T Justice Story's decision to the effect that
political rights do not stand upon the
mere doctrines of municipal law, applica-
BILE to ordinary transactions, but stand
upon the more general principles of the
law OF nations" was cited to argue that
the provision of the fourteenth amend
| ment intended to follow and adopt the
rule of international law.
Further, it was contended that common
law doctrine could not apply for the reason
that there is no common law proper of the
United States, and finally 1t was NAM
tanned that the United States Supreme
Court in the slaughter house cases
adopted the rule of international law, and
case OF Elk vs.. Wilkins was also cited in
support of this position.
Then on the other hand, as logically, the
argument of the counsel for the petitioner
was taken up, namely: that what the court
said in the slaughter-house cases is but
mere dictum; that the highest Federal
tribunal has never directly passed upon
the question at issue, but that the United
States Circuit Court had adjudicated the
question in the Look Tin Sing and Gee
Fook Sing cases, and so far as this circuit
is concerned the decisions IN those cases
should control Judge MOrrow's court.
Wong attorneys had made use of the de-
cision of Vice-Chancelior Lewis II. San
ford OF New Y ork in 1874 in the Lynch vs.
Clark case. Speaking of the two decisions
rendered by the Circuit Court here Judge
Morrow says;
While the two decisions rendered in this
circuit would seem, upon the principle of
stare decisis, 10 be conclusive upon the ques-
ton raised here and controlling upon this
court; yet, in view OF the fact that it has been
argued on the part OF the Government, and
very torcibly, that the Supreme Court laid
down, in the slaughter house cases, doctrine
at variance with that announced in these
decisions, and as claimed IN conSonance with
that OF the law OF nations, 1t will be necessary
TO examine these cases with care and at great
length
The question is an important one, not alone
from an abstract point OF view, but because OF
The consequences decision unfavorable TO
the petitioner would involve. For, ii the con-
tentlon OF counsel for the Government be
correct, it VIII inevitably result that thousands
OF persons OF both sexes, who have been con
sidered citizens of the United States, and
have always been treated rs such, Will be, to all
intents and purposes, denationalized and re-
nanGed TO a state OF atienage.
Included among these are thousands of
voters who exercising the right of suffrage
as American citizens, and whose right as such
is not and never has been questioned, because
birth within the country seems to have been
recognized generally conclusive upon the
question OF citizenship.
determined, either prior to or subsequent 10
the adoption OF the fourteenth amendment in
1866, the political status OF children born here
! OF foreign parents. In the case OF Minor vs..
IIappersett, 81 Wall, I6S, the court expressly
declined to pass upon that question Nor was
there any definition in the constitution or in
the acts OF Congress of what constituted citi-
zenShip until the adoption of the fourteenth
amendment.
He next explains the common law prin-
cipe chat birth within the realm was
deemed conclusive" and the rule OF the
law of nations that "birth follows the
political status of the parents" but OBJ
serves that the fourteenth amendment is
controlling on the question presented ire
spective OF either the common law or in
ternational law doctrines He admits
though, that in view of the ambiguous and
uncertain character of the qualifying
phrase, Subject to the jurisdiction
..r1Nx
one rs to which rule the provision was in
tended to declare.
The decision of Justice Field in the Look
| Ting Sing case is gone over at length.
Justice Field held that although the
petitioner was born here of parents sub
ject to the Emperor of China, he was a
citizen within the meaning of the Four
teenth Amendment. Look Ting Sing was
born in Mendocino County in 1870. His
father sent him to China when nine wears
OLD, and he returned in September, 1884
The burden of Justice Fields decision
in effect was; Look Ting Sing was born
here; his parents were not engaged in the
diplomatic service of any foreign Govern
ment; he was not born on a vessel of
foreign nation while within the waters of
the United States he had not renounced his
allegiance to this Government; therefore
the words subject to the jurisdiction
thereof do not exclude him from citizen
over him al the time of birth was exclusive
of that of any foreign country. The
citizenship clause of the fourteenth
amendment was to overturn the doctrine
enumerated In the bred Scott case. And
Justice Field continued:
Independently of the constitutional pro-
vision, it has always been the doctrine of this
country, except applied to Africans brought
here and sold as slaves, and their descendants,
that birth within the dominons and juris-
dictions OF the United States OF itself creates
citizenship.
The Gee Fook Sing case was decided by
the United States Circuit Court of appeals,
Judge Hanford writing the opinion. 1t
simply assumed Justice Fields interpre-
tation of the citizenship clause of the con-
stitution and recognized the right of a
person alleging himself to be a citizen to
hearing on habeas corpus proceedings.
AS to the mere obiter dictum OF the
United States Supreme Courts decision in
the slaughter-house cases Judge Morrow
shows that the question of citizenship was
purely incidental an subordinated 10 the
main question OF whether the State of
Louisiana's concessions were police regu-
lations for the health and comfort of tue
people. The question OF citizenship arose