not engaged in any diplomatic or official capacity under the emperor of China, is a citizen of the United States. The case is similar to that of the petitioners. The party in question was born in California. in 1870, of Chinese parents. In 1879, he went to China, and returned to California in 1884, without the certificate provided for in the restriction act of 1882, or that of 1884, and was therefore denied the right to land.

6

"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 their 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 appears 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, 4 Wash. C. C., 380; Paul v. Virginia, 8 Wall., 180. "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, pass through,

or reside in this state, and is therefore contrary to and in violation of the constitutional provision guaranteeing such right to every citizen. Sections 751, 752, and 753 of the Revised Statutes provide, in effect, that the courts of the United States and the judges thereof shall have power, by habeas corpus, to deliver a person held in custody or restrained of his liberty in violation of the Constitution or of a law or treaty of the United States.

"The petitioners, as we have seen, are restrained of their liberty in violation of the Constitution, and therefore this court has jurisdiction to discharge them on habeas corpus. "The petitioners are discharged from custody.”

HAUSDING'S CASE.

FRELINGHUYSEN, SEC. OF STATE, TO KASSON, 1885.

(2 Wharton's Digest, 399.)

Children born in the United States of alien parents, and never dwelling in the United States are not citizens thereof.

The "case of Ludwig Hausding, appears to have been decided according to the law and the facts. It is stated that having been born in the United States of a Saxon subject, he was removed to his father's native land, where he has ever since remained, although his father has subsequently become a citizen of the United States. You refused a passport on the ground that the applicant was born of Saxon subjects, temporarily in the United States, and was never 'dwelling in the United States,' either at the time of or since his parent's naturalization, and that he was not, therefore, naturalized by force of the statute, section 2172, Revised Statutes.

"It does not appear from your statement whether Wilhelm Hausding, the father, had declared his intention to become an American citizen before the birth of Ludwig. While this, if it were established, would lend an appearance of hardship to an adverse decision upon his claim to be deemed a citizen, yet, even in this case, as the statutes stand, your decision would conform to the letter of the law, section 2168, which admits to citizenship, on taking the oath prescribed by law, the widow and children of an alien who has declared his intention but dies before completing his naturalization.

"By providing for special exemption excludes the idea of any other exemption, as for instance in the case of the non-completion of

the father's naturalization before the permanent removal of the minor son from the jurisdiction of the United States.

"Not being naturalized by force of the statute, Ludwig Hausding could only assert citizenship on the ground of birth in the United States; but this claim would, if presented, be untenable, for by section 1992, Revised Statutes, it is made a condition of citizenship by birth that the person be not subject to any foreign power.

"This last consideration serves only to answer the 'quære' which you annex to your statement of the Hausding case.

"You ask: "Can one, born a foreign subject, but within the United States, make the option after his majority, and while still living abroad, to adopt the citizenship of his birthplace? It seems not, and that he must change his allegiance by emigration and legal process of naturalization.' Sections 1992 and 1993 of the Revised Statutes clearly show the extent of existing legislation; that the fact of birth, under circumstances implying alien subjection, establishes of itself no right of citizenship; and that the citizenship of a person so born is to be acquired in some legitimate manner through the operation of statute. No statute contemplates the acquisition of the declared character of an American citizen by a person not at the time within the jurisdiction of the tribunal of record which confers that character."

EMDEN'S CASE.

PORTER, ACTING SEC. OF STATE, TO WINCHESTER, 1885.

(2 Wharton's Digest, 410.)

Children born abroad of citizens of the United States and continuing to reside abroad, are not citizens thereof unless they elect to become such on coming of age.

Robert Emden was born in Switzerland, in 1862, and at the time of his application in 1885 for a passport, had never been in the United States. His father, a Swiss by origin, was naturalized in New York in 1854, but soon afterwards returned to Switzerland, where he continued afterwards to reside.

"Undoubtedly, by the law of nations, an infant child partakes of his father's nationality and domicile. But there are two difficulties in the way of applying this rule to the present case. In the first place a parent's nationality cannot, especially when produced by naturalization, be presumed to be adhered to after a residence in the country of origin for so long a period as in the present case.

"In the second place, the rule as to children only applies to minors, since when the child becomes of age he is required to elect between the country of his residence and the country of his alleged technical allegiance. Of this election two incidents are to be observed: when once made it is final; and it requires no formal act, but may be inferred from the conduct of the party from whom the election is required.

"Applying these tests to the present case it can hardly be said that Mr. Robert Emden's claim to be a citizen of the United States is, as a matter of international law, made out. The burden of proof is always on the applicant for the passport, and here there is no evidence to prove either his father's non-abandonment of his United States citizenship, or his own election of such citizenship, save the applications of father and son for passports."

A PRUSSIAN SUBJECT.

OPINION OF THE ATT.-GENERAL, 1875.

(2 Wharton's Digest, 412.)

Under the treaty between the United States and the North German Confederation of 1868, a Prussian by birth, naturalized in the United States, is presumed to have renounced his American citizenship, if he returns to Prussia, and resides there two years.

"A Prussian subject by birth emigrated to the United States in 1848, became naturalized in 1854, and shortly afterwards returned to Germany with his family, in which was a son born in the United States, and became domiciled at Wiesbaden, where, together with his family, he has since continuously resided. The son having reached the age of twenty years, has been called upon by the German Government for military duty. The father invoked the intervention of the United States legation at Berlin, but declined in behalf of the son to give any assurance of intention on the part of the latter to return to the United States within a reasonable time and assume his duties as a citizen.

"Article IV. of the naturalization treaty between the United States and North Germany of 1868, reads as follows: If a German naturalized in America renews his residence in North Germany without intent to return to America, he shall be held to have renounced his naturalization in the United States. * The intent not to return may be held to exist when the person naturalized in the one country resides more than two years in the other country.'

"It was held (1) that under the above article, the father must be deemed to have abandoned his American citizenship and to have resumed the German nationality; (2) that the son, being a minor, acquired under the laws of Germany the nationality of his father, but did not thereby lose his American nationality; (3) that upon attaining his majority, the son may, at his own election, return and take the nationality of his birth or remain in Germany and retain his acquired nationality; (4) yet that during his minority and while domiciled with his father in Germany, he cannot rightfully claim exemp tion from military duty there."

SECTION 24.-PROTECTION TO CITIZENS ABROAD.

WAGNER'S CASE.

FRELINGHUYSEN, SEC. OF STATE, TO HUNT, 1883.

(2 Wharton's Digest, 392.)

What are the rights of a foreign minor who emigrates to the United States, and becomes naturalized there, and then returns to his native land? May he be forced to serve in the army of his original State?

"From the responses previously made to your inquiries in Mr. Wagner's behalf, it appears that the brunt of the charge against him was that he, a minor, quitted Russian jurisdiction in advance of attaining the age when he might have been called upon for military service. He was born at Lodz, 1852, and in 1874 became liable to military service. He came to the United States in 1869, five years before the liability could rest upon him. When the technical offense, styled evasion of military duty, which is the sole charge against him, began to exist as a tangible accusation, Reinhardt Wagner had already, by residence in the United States for more than three years preceding his majority, acquired under our statutes the preliminary rights of citizenship. No nation should assert an absolute claim over one of its subjects under circumstances like these, and it is thought improbable that Russia will persist in such a claim, even if made. There would be no limit to such a pretension, for the taking of a male infant out of Russia might be regarded with equal propriety as an evasion' of eventual military service. "It is tantamount to asserting a right to punish any male Rus