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Vol. I, p. 772, sec. 13.

This section is not affected by the Immigration Act of Feb. 20, 1907 (Fed. Stat. Annot. 1909 Supp. 161). Ex p. Wong Tuey Hing, (N. D. Cal. 1914) 213 Fed. 112.

Constitutional privilege. The fact that the person taken into custody is a Chinese person, gives, under the fifth amendment to the Constitution of the United States, that person no less rights than are given to any other person, not to be deprived of life, liberty or property, without due process of law. United States v. Hom Lim, (E. D. N. Y. 1914) 214 Fed. 456. Ground for arrest. In United States v. Hom Lim, (E. D. N. Y. 1914) 214 Fed. 456, it appeared that a United States commissioner had issued a warrant upon a complaint of a Chinese inspector to the effect that the person whose arrest was sought was "a Chinese person and not entitled to be and remain in the United States without certificate of residence as required by law." Before the issuance of the warrant, the Chinese person had been taken into custody by an inspector, without a warrant, upon questions and answers taken down by a stenographer and obtained while the inspector was inquiring as to the possession of certificates. Holding that such action on the part of the inspector was unauthorized the court said: "It must be observed that no Chinese person or person of Chinese descent may be arrested, even upon a warrant, unless based upon circumstances showing him to be unlawfully within the United States. Section 13, Acts of 1888. A person who has been lawfully 'arrested' shall be adjudged to be unlawfully within the United States unless he furnishes affirmative proof of his right to remain. It would render the law unconsti

Vol. I, p. 778, sec. 6.

Minor children. The minor son of a resident Chinese merchant, admitted into this country as such, may not thereafter be deported for the sole reason that after attaining his majority he has worked as a laborer. Ex parte Lew Lin Shew, (N. D. Cal. 1914) 217 Fed. 317.

The death of a Chinese merchant domiciled in the United States destroys the communicated status of a minor son, and the latter's right to enter as the minor son of a resident merchant thereupon ceases. In such event he must produce the evidence

Vol. I, p. 782, sec. 10.

Who is "master."-To work a forfeiture under this section the "master" must violate the statute. The Calypso, (N. D. Cal. 1914) 217 Fed. 669, wherein it appeared that the owner of a minority interest in a gasoline launch, without the knowledge or consent of the owner of the majority interest, and in violation of an agreement between them, had himself enrolled

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tutional if it should be held to allow the arrest and deportation of a person, even where a warrant had been issued, unless the record showed some proof, at least in the way of allegations of fact, that the person arrested was a Chinese person or person of Chinese descent, and that this person was 'unlawfully' in the country and had been arrested because of some state of facts prohabited by and within the language of the law." The court further held that the arrest before the issuance of the warrant and upon no facts indicating unlawful presence in the United States was without foundation or legal right. The hearing before the commissioner developed the fact that the Chinaman was apparently a citizen and he should have been discharged.

Use of writ of habeas corpus. - To the same effect as the original note see Ex parte Jim Hong, (C. C. A. 9th Cir. 1914) 211 Fed. 73, wherein the court held that a Chinese person arrested upon a warrant returnable before a United States commissioner is not entitled to a discharge on habeas corpus proceedings on the ground that he possessed a certificate of residence. That question is a proper subject of inquiry by the commissioner and for review on appeal from the commissioner and not on habeas corpus. Issues and proof. Where a Chinese person is questioned by a Chinese inspector or any other person as to his status, before having been arrested or subjected to duress, the proof furnished by himself can be used against him, if need be, and inconsistent statements can be the basis of a finding of fact as to unlawful presence, even though "citizenship" be claimed. United States v. Hom Lim, (E. D. N. Y. 1914) 214 Fed. 456.

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required by law if he desires to establish a status upon which to base a right to land. Ex parte Chan Fooi, (N. D. Cal. 1914) 217 Fed. 308.

The certificate is only prima facie evidence of the right of the applicant to land in the United States, and the immigration officers have the authority to deny its controlling effect, and upon consideration of all the testimony, to reject it as evidence. United States v. Li Chiong, (C. C. A. 9th Cir. 1914) 217 Fed. 45.

master, and used the vessel to bring Chinese persons to a United States port where the vessel was seized under this act. The court held that such minority owner was not the master of the vessel within the meaning of this section and that the interest of the majority owner was not subject to forfeiture because of the former's action.

Vol. I, p. 782, sec. 11.

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Sufficient indictment. — In Hee v. U. S., (C. C. A. 2d Cir. 1915) 223 Fed. 732, the first count of the indictment drawn under this section was held sufficient. It charged that there arrived at the port of New York on the 17th day of June, 1914, from a foreign country, on board the steam vessel Tagus, two Chinese persons, one of whom was Chin Woo; that the name of the other was unknown, and that they were not lawfully entitled to enter the United States; that they unlawfully landed in the United States from the said vessel, and that the defendants, "within the jurisdiction of this court, did knowingly, unlawfully, and willfully aid and abet the landing in the United States from said steam vessel Tagus of the said Chinese persons." The court said: "It is claimed that the first count of the indictment is fatally defective, in that it does not state the facts upon which it is based. There is nothing in this contention. Under

Vol. I, p. 782, sec. 12.

Entry as dependent on certificate. The intention of Congress is clearly indicated in this section that no person falling within the provisions of section 6 may be allowed to enter the United States in the absence of the certificate therein required. Ex parte Chan Fooi, (N. D. Cal. 1914) 217 Fed. 308. Removal of Chinese to country whence they came. To the same effect as the original note see United States v. Redfern, (E. D. La. 1914) 210 Fed. 548, in which the court held that a warrant deporting Chinese to China who had entered the United States from Canada, was irregular and without authority.

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Executing judgment of deportation after release or discharge. In Ex parte Wong Wing, (D. C. Mass. 1914) 220 Fed. 352, the statement of the case by the court sets forth the following facts: "The petitioner is a Chinese person who has been arrested and is held for deportation under a 'judgment' or order of deportation made by Fred W. Dudley, United States commissioner for the Northern district of New York, dated May 19, 1903. The defendant named in said judgment was Chung Ming. The petitioner says that he is not Chung Ming, but is Wong Wing, a different person. respondent contends that Chung Ming and Wong Wing are the same person. The case was heard before me in open court, and several witnesses testified for each party. Chung Ming, after having been arrested on the Dudley judgment, escaped from the custody of a United States marshal at Providence, R. I., on June 19, 1903, while being transported for deportation, and was not recaptured. On March 13, 1913, the petitioner was arrested under the name of Wong Wing on proceedings instituted in this district on the charge of being a Chinese laborer unlawfully in the United States.

the Constitution of the United States a person accused of a criminal offense is entitled to be informed of the nature and cause of the accusation against him. There must therefore be such particularity of allegation in an indictment as will enable the accused to understand the charge which is preferred and to prepare his defense. But the principle is well established that while all the elements of the crime charged, or facts necessary to make out the offense, must be fully and clearly set out, it is not necessary to allege matters in the nature of evidence, or to set out the means by which the crime is accomplished, unless the act is one which may be criminal or not according to the circumstances under which it is done. The indictment in this case sets forth fully and clearly every essential fact and informs of the nature and cause of the accusation."

Act July 5, 1884, c. 220, sec. 1 (23 Stat. 117) 1 Fed. Stat. Annot. 774, amending Act May 6, 1882, c. 126, sec. 12 (22 Stat. 61) 1 Fed. Stat. Annot. 782). The matter was heard before United States Commissioner Hayes. At the time of the proceedings before Commissioner Hayes, the United States officials in charge of them had contended that Wong Wing and Chung Ming were the same person, and offered the Dudley judgment and order in evidence. It was excluded by the commissioner for lack of evidence connecting it with the defendant. He did not undertake to decide whether Wong Wing was Chung Ming, and on the evidence before him found that Wong Wing was a Chinese merchant lawfully within the United States and ordered his discharge. No appeal was or could be taken from this decision. Thereafter the petitioner was rearrested on the Dudley judgment, and these proceedings were instituted to obtain his discharge.' The court found, by a fair preponderance of the evidence, that Wong Wing and Chung Ming against whom the Dudley judgment was rendered, were one and the same person. Passing to a consideration of the questions whether the Dudley judgment was still in force and if so, whether the Hayes judgment in favor of Wong Wing barred the United States from proceedings to deport under the Dudley judgment, the court said: "It is contended by the petitioner that deportation proceedings are civil in their nature, which is undoubtedly well established (Li Sing v. United States, 180 U. S. 486, 21 Sup. Ct. 449, 45 L. ed. 634; Fong Yue Ting v. United States, 149 U. S. 698, 13 Sup. Ct. 1016, 37 L. ed. 905); that the warrant of deportation is equivalent to an execution on a judgment in a civil case; that by the law of New York such executions expired, unless renewed by an alias,

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in one year and after their date; and that therefore the Dudley judgment has expired, and is no longer of any force or effect. But it seems to me that this is pressing the analogy between deportation proceedings, which are almost sui generis, and actions at law, altogether too far. No United States statute and no decision bearing on the point has come to my attention. I do not think orders of deportation made by the United States immigration authorities ought to be governed in this respect by the law of the state in which they happen to be made. It seems to me that the Dudley judgment of deportation and the order based upon it are, as to the matters now before the court, the equivalent of a warrant in a criminal case, that their validity is not limited by the New York law relating to executions in civil cases, and that they are still in full force and effect against the petitioner. If, as I have found, the petitioner and Chung Ming are the same person, there was, at the time when deportation proceedings were instituted against the petitioner by the United States in this district in 1913, an outstanding judgment of deportation against him on which he might have been arrested and deported. Instead of proceedings directly upon that judgment, the United States officers chose to institute new proceedings, the result of which was an adjudication in the petitioner's favor that he was lawfully in the United States. It is contended by the petitioner that the United States, having elected, with full knowledge of the Dudley judgment, not to rely solely upon it, but to proceed de novo against him, and having lost, cannot now assert the former judgment, and that the respondent's answer in the proceedings setting up the Dudley judgment (therein called a warrant and order'), is sufficiently met by the Hayes judgment in the petitioner's favor, which, it is said, conclusively established his right to remain in the United States. The decisions of the United States commissioners were judgments. Grin v. Shine, 187 U. S. 181, 187, 23 Sup. Ct. 98, 47 L. ed. 130. It

is plain that the second judgment in no way affected the validity of the first judgment. In other words, Commissioner Hayes had no authority to revise or correct the judgment entered by Commissioner Dudley; and he has not undertaken to do so. If the validity of the Dudley judgment has been affected, it must be because of the action of the United States in instituting new proceedings with knowledge that the Dudley judgment was in existence. The principles invoked seem to be those of waiver, election of remedies, or estoppel. No case has been found which throws much light on the matter. As to waiver and election of remedies, these depend upon an actual or imputed intent by a party who has taken a certain course of action to abandon all other inconsistent positions. There would seem to be nothing inconsistent between the position of the United States before Commissioner Hayes and its present position. At both times, it contended that the petitioner was unlawfully in the United States and was subject to deportation. If the petitioner had in fact escaped from a United States marshal while being transported for deportation, he was unlawfully in the United States and was subject to deportation, both because he had no right to be in the United States, and because he had been ordered deported. I do not think that the United States, by proceeding against him upon the first ground, ought to be held to have waived or lost its rights to proceed against him on the second. Nor do I think that the United States is estopped by the decision of Commissioner Hayes from further proceedings against the petitioner. The judgment on which the United States now relies long antedates that of Commissioner Hayes. It does not seem to me that a party is estopped from enforcing an outstanding and valid judgment by reason of a later inconsistent judgment rendered in different proceedings, and I think that the principles of estoppel or waiver should be applied with especial caution against rights asserted by the public."

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invalidity. Its basis is that the citizenship of plaintiff was an incident to her birth in the United States, and, under the Constitution and laws of the United States, it became a right, privilege and immunity which could not be taken away from her except as a punishment for crime or by her voluntary expatriation. It may be conceded that a change of citizenship cannot be arbitrarily imposed, that is, imposed without the concurrence of the citizen. The law in controversy does not have that feature. It deals with a condition voluntarily entered into, with notice of the consequences. We concur with counsel that citizenship is of tangible worth, and we sympathize with plaintiff in her desire to retain it and in her earnest assertion of it. But there is involved more than personal considerations. As we have seen, the legislation was urged by conditions of national moment. And this is an answer to the apprehension of counsel that our construction of the legislation will not make every act, though lawful, as marriage, of course, is a renunciation of citizenship. The marriage of an American woman with a foreigner has consequences of like kind, may involve national complications of like kind, as her physical expatriation may involve. Therefore, as long as the relation lasts it is made tantamount to expatriation. This is no arbitrary exercise of government. It is one which, regarding the international aspects, judicial opinion has taken for granted would not only be valid but demanded. It is the conception of the legislation under review that such an act may bring the Government into embarrassments and, it may be, into controversies. It is as voluntary and distinctive as expatriation and its consequence must be considered as elected."

American woman married to resident foreigner. In Mackenzie v. Hare, (1915) 239 U. S. 299, 36 S. Ct. 106 (affirming, (1913) 165 Cal. 776, 134 Pac. 713, Ann. Cas. 1915B 261) the court said: "Upon

the construction of the act it is urged that it was not the intention to deprive an American-born woman, remaining within the jurisdiction of the United States, of her citizenship by reason of her marriage to a resident foreigner. The contention is attempted to be based upon the history of the act and upon the report of the committee upon which, it is said, the legislation was enacted. Both history and report show, it is asserted, 'that the intention of Congress was solely to legislate concerning the status of citizens abroad and the questions arising by reason thereof.' Does the act invite or permit such assistance? Its declaration is general, 'that any American woman who marries a foreigner shall take the nationality of her husband.' There is no limitation of place; there is no limitation of effect, the marital relation having been constituted and continuing. For its termination there is provision, and explicit provision. At its termination she may resume her American citizenship if in the United States by simply remaining therein; if abroad, by returning to the United States, or, within one year, registering as an American citizen. The act is therefore explicit and circumstantial. It would transcend judicial power to insert limitations or conditions upon disputable considerations of reasons which impelled the law, or of conditions to which it might be conjectured it was addressed and intended to accommodate. Whatever was said in the debates on the bill or in the reports concerning it, preceding its enactment or during its enactment, must give way to its language, or, rather, all the reasons that induced its enactment and all of its pur; poses must be supposed to be satisfied and expressed by its words, and it makes no difference that in discussion some may have been given more prominence than others, seemed more urgent and insistent than others, presented the mischief intended to be remedied more conspicuously than others."

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Vol. I, p. 792, sec. 1978.

Inheritance.-A Tennessee statute which permitted children of slave marriages to inherit under certain circumstances, discriminating in favor of those whose parents lived in Tennessee was held valid in Napier v. Church, (1915) 132 Tenn. 111, 177 S. W. 56.

Vol. 1, p. 795, sec. 1979.

Liability of election officers.- Election officers who deprive persons of voting by virtue of a state statute disqualifying them are liable for damages under this section if the statute violates a provision of the United States Constitution. Myers v. Anderson, (1915) 238 U. S. 368, 35 S. Ct. 932, 59 U. S. (L. ed.) 1349.

Limitation of action. In an action in

Vol. I, p. 801, sec. 1990.

Peonage defined. - Peonage is a status or condition of compulsory service, based upon the indebtedness of the peon to the master. The basal fact is indebtedness. All were indebted to their masters. Peonage is sometimes classified as voluntary or involuntary, but this implies simply a difference in the mode of origin, but none in the character of the servitude. The one exists where the debtor voluntarily contracts to enter the service of his creditor. The other is forced upon the debtor by some provisions of law. But peonage, however created, is compulsory service, involuntary servitude.

The peon

can release himself therefrom, it is true, by the payment of the debt, but otherwise the service is enforced. A clear distinction exists between peonage and the voluntary performance of labor or rendering of services in payment of a debt. In the latter case, the debtor, though contracting to pay his indebtedness by labor or service, and subject like any other contractor to an action for damages for breach of that contract, can elect at any time to break it, and no law or force compels performance or a continuance of the service. United States v. Reynolds, (1914) 235 U. S. 133, 35 S. Ct. 86, 59 U. S. (L. ed.) 162, following Clyatt v. United States, 197 U. S. 207. See to the same effect United States v. Broughton, (S. D. Ala. 1914) 213 Fed. 345.

The purpose of this statute was to strike down all laws, regulations, and usages in the states and territories which attempted to maintain and enforce, directly or indi

Vol. I, p. 802, sec. 5508.

The right to have one's vote counted is as open to protection by Congress as the right to put a ballot in a box, and a conspiracy by election officers to infringe the right by omitting certain precinct returns from their count and from returns to the state election board in a Congressional election is punishable under this section. U. S. v. Mosely, (1915) 238 U. S. 383, 35 S. Ct.

a state court for damages for a personal assault, the action being brought under this section, the question whether the action was begun in time is determined from the law of the state rather than from section 1047 of the Revised Statutes of the United States (see 4 Fed. Stat. Annot. p. 865). O'Sullivan v. Felix, (1914) 233 U. S. 318, 34 S. Ct. 596, 58 U. S. (L. ed.) 980.

rectly, the voluntary or involuntary service or labor of any persons as peons, in the liquidation of any debt or obligation. U. S. v. Reynolds, (1914) 235 U. S. 133, 35 S. Ct. 86, 59 U. S. (L. ed.) 162.

Peonage contract. In U. S. v. Reynolds, (1914) 235 U. S. 133, 35 S. Ct. 86, 59 U. S. (L. ed.) 162, reversing (S. D. Ala. 1914) 213 Fed. 345, 352, (S. D. Ala. 1914) it was held that a relation of peonage was established by a contract the body of which was as follows:

"Whereas, at the May term, 1910, of the county court, held in and for said county, I, Ed Rivers, was convicted in said court of the offense of petit larceny, and fined the sum of fifteen dollars, and judgment has been rendered against me for the amount of said fine, and also in the further and additional sum of forty-three and 75/100 dollars, cost in said case, and whereas J. A. Reynolds, together with A. C. Hixon, have confessed judgment with me in said court for said fine and cost. Now, in consideration of the premises, I, the said Ed Rivers, agree to work and labor for him, the said J. A. Reynolds, on his plantation in Monroe County, Alabama, and under his direction as a farm hand to pay fine and cost for the term 9 months and 24 days, at the rate of $6.00 per month, together with my board, lodging, and clothing during the said time of hire, said time of hire commencing on the 4th day of May, 1910, and ending on the 28 day of Feb., 1911, provided said work is not dangerous in its character."

904, 59 U. S. (L. ed.) 1355, wherein Mr. Justice Holmes for the court said: "It is not open to question that this statute is constitutional, and constitutionally extends some protection, at least, to the right to vote for members of Congress. Ex parte Yarbrough, 110 U. S. 651, 28 L. ed. 274, 4 Sup. Ct. Rep. 152; Logan v. United States, 144 U. S. 263, 293, 36 L. ed. 429, 439, 12

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