1888.]

Opinion of the Court-Deady, J.

So in this case, if Owens had paid this note when it became due, and then brought an action as payee thereof to recover the amount from the defendants as makers of the same, they might have shown by parol the true relation between themselves and Owens; that he was in fact the principal in and maker of the note and received the money thereon; and that they were only his sureties, and thus defeat the action.

Is there any good reason why the plaintiff may not, for the purpose of maintaining this action in this court, show that notwithstanding the form of the note, they are in fact the payees of the same; that it has never been really assigned to any one, but was put in circulation by delivery to them by Owens, one of the makers thereof, for money then loaned to him? I can conceive of none, nor has any been suggested in the argument.

The jurisdiction of this court is presumably a beneficial one, and therefore the law conferring it is not to be strictly construed, but rather the exception to it. The exercise of this jurisdiction. tends to promote confidence and commercial intercourse between the citizens of the several states of the Union, by furnishing them a comparatively impartial tribunal wherein to adjudicate and enforce the controverted and unsatisfied claims growing out of such intercourse.

The facts showing the true relations between the parties to this note, may, as between themselves, be alleged and proven by parol, for any purpose affecting either of their rights or liabilities thereon. The right of the plaintiffs "to recover the con-tents" of this note from the defendants, by an action in this: court, and the liability of the defendants therein, are among these rights and liabilities. Therefore, when it is necessary to main-tain the jurisdiction cf the court in such an action, to show that the plaintiff, who upon the face of a note, is in form an indorsee or assignee thereof, is in fact the payee of the same, it may be done.

On the facts stated in the complaint, the plaintiffs are the payees and first holders of this note. There never was any assignment of it; and the case does not come within the restriction of the judiciary act, nor the reason of it.

The demurrer is overruled.

XIII. SAWY.-34.

1. CHINESE

IN RE WY SHING.

IN RE WONG GAN.

CIRCUIT COURT, NORTHERN DISTRICT OF CALIFORNIA.

NOVEMBER 8, 1888.

CHILDREN BORN IN UNITED STATES-CITIZENSHIP — FOURTEENTH AMENDMENT.- -A person born in the United States of Chinese parents residing therein, and not engaged in any diplomatic or official capacity under the government of China, or other foreign power, is born subject to the jurisdiction of the United States, and he is a citizen thereof, under the fourteenth amendment to the national constitution.*

2. SAME EXCLUSION ACTS - CONSTRUCTION.-The Chinese restriction acts of 1882 and 1884, and the exclusion act of 1888, are not applicable to citizens of the United States, though of Chinese parentage.*

3. CONSTITUTIONAL LAW-RIGHTS OF CITIZENS. — No citizen can be excluded from the United States, except in punishment for crime.

Before SAWYER, Circuit Judge.

Habeas corpus.

Wy Shing was born in San Francisco, Cal., of Chinese parents, who had intermarried at Marysville, in the state of California. After his birth petitioner's parents returned to Marysville, where his mother died when he was three years old. When petitioner was six years old his father sent him to China in charge of an elder brother of the father, where he remained till thirteen years old, when he returned to California. In 1885 he went to China again, and remained there till September, 1888, when he took passage a second time for California, before the passage of the late exclusion act. He arrived at San Francisco October 7, 1888, after the approval of said exclusion act, on October 1, 1888. The collector refused him permission to land, on the ground that he was a Chinese laborer, who had departed from the country, and that he was prohibited from returning by the provisions of said act. His father was, and he still is, a laborer, and he was in no way in the service of the emperor or government of China at the time of the birth of petitioner, or at any other time. He still resides in California, and he has never been back to China or left the state of California since the birth of petitioner.

*See, to the same effect, Er parte Chin King, ante, 334; 35 Fed. Rep. 354; In re Yung Sing Hee, ante, 482; 35 Fed. Rep. 437.

1888.]

Opinion of the Court-Sawyer, C. J.

Wong Gan was born in San Francisco in 1868. He is now twenty years old. His father was a merchant while here, but he labors in the field in China, although he has an interest in a small trading establishment. The petitioner returned to China with his parents when he was fourteen years old, where he remained till September, 1888, when he embarked on his return voyage to San Francisco, and arrived at his destination since the passage of the exclusion act. Neither his father nor his mother has ever returned to San Francisco, since their departure in 1881. They still remain in China. While here they had no connection with the diplomatic service of the Chinese empire.

Mr. A. H. Ricketts, for petitioners.

Mr. John T. Carey, United States Attorney, for the United States.

SAWYER, Circuit Judge, after stating the facts as above. In Look Tin Sing's Case, 10 Sawy. 353; 21 Fed. Rep. 905, after a full argument by able counsel, and careful consideration by the court, Mr. Justice FIELD, with the concurrence of the circuit. and district judges, held that a person born in the United States, of Chinese parents not engaged in the diplomatic service of any foreign government, is born subject to the jurisdiction of the United States, and is a citizen thereof, under the provisions of the fourteenth amendment to the national constitution. As such citizen, it was further held that he was not subject to the Chinese restriction laws, and could not be excluded from this country. I am still satisfied with this ruling; but, if I were in doubt, I should not presume to overrule Mr. Justice FIELD upon a question which he has so maturely considered, and decided. If the point was erroneously decided, then children of Caucasian parentage, born under similar circumstances, are not citizens; and hundreds of thousands have, for years, been, unlawfully, enjoying and exercising all the rights of citizens, civil and political. The decision in that case controls these cases, which are similar to it. The petitioners are citizens, and are not, and they cannot be, excluded from the United States under the provisions of the late act in question. They are, therefore, illegally restrained of their liberty, and must be discharged, and it is so ordered.

Opinion of the Court-Deady, J.

[November,

THE UNITED STATES v. SIMON LEWIS.

DISTRICT COURT, DISTRICT OF OREGON.

NOVEMBER 10, 1888.

1. SUBDIVISION 1 OF SECTION 563 OF THE REVISED STATUTES.— This statute does not confer jurisdiction on the district courts of any crime not otherwise defined by some statute of the United States.

2. COMMON-LAW CRIMES.-The courts of the United States have no common-law jurisdiction in criminal cases.

8. ASSAULT ON THE HIGH SEAS. An assault with a dangerous weapon on the high seas is not a crime against the United States, unless committed on board an American vessel, as provided in section 5346 of the Revised Statutes.

Before DEADY, District Judge.

Mr. Lewis L. McArthur, for the plaintiff.

Mr. Edward N. Deady, for the defendant.

DEADY, J. The defendant is accused by the information in this case of the crime of assault with a dangerous weapon on the high seas, contrary to the statute in such cases made and provided, and alleged to have been committed as follows:

On October 27, 1888, the defendant was the master of the bark Emblem, then on the Pacific Ocean about four hundred miles off the coast of Oregon, and did then and there assault and beat one Walter Toy, a seaman on said bark, with a dangerous weapon, to wit, a deck scraper.

The defendant demurs to the information for that the facts stated therein do not "bring the offense charged within the jurisdiction of this court."

Subdivision 1 of section 563 of the Revised Statutes gives the district courts jurisdiction "of all crimes and offenses cognizable under the authority of the United States, committed within their respective districts or upon the high seas, the punishment of which is not capital, except," etc.

Section 5346 provides: "Every person who, upon the high within the admiralty jurisdiction of the United on board any vessel belonging in whole or in part to the United States, or any citizen thereof, with a dangerous

seas

States

weapon..

ished," etc.

commits an assault on another, shall be pun

Opinion of the Court-Deady, J.

1888.]

Jurisdiction in this case is claimed under subdivision 1 of section 563. But this section does not confer jurisdiction on the district courts of any particular crime, but only of such as may be committed within their respective districts or upon the high seas, and are cognizable under the authority of the United States. A crime is "cognizable under the authority of the United States" when it is triable in its courts by virtue of its laws.

It is long since settled that the courts of the United States have no common-law jurisdiction in criminal cases; that so far as the United States are concerned there are no common-law crimes, and that therefore its courts cannot take cognizance of any act or omission as a crime unless it has been made such by an act of Congress. (United States v. Hudson, 7 Cranch, 32; United States v. Bevans, 3 Wheat. 336.)

The only act of Congress making an assault on the high seas, with a dangerous weapon, a crime, is section 5346 of the Revised Statutes (sec. 4 of the act of 1825), and one of the elements of the crime, as therein defined, is that the assault must take place on board of a vessel belonging in whole or in part to the United States, or some citizen thereof. The information does not disclose the nationality of the vessel on which the alleged assault took place. To constitute a crime against the United States of which this court has jurisdiction, the assault must have taken place on board an American vessel, and that fact must be alleged in the pleading.

As a matter of fact, it is admitted in this case that the Emblem is a British vessel, and that the parties to the assault are British subjects. But this admission is unnecessary, for the American nationality of the vessel must be alleged. That Congress may go further, and authorize the punishment of parties for offenses committed on the high seas, without reference to their nationality, or that of the vessel on which the same are committed, if they shall thereafter be found or come within the United States, may be admitted. (United States v. Palmer, 3 Wheat. 630; United States v. Bevans, 3 Wheat. 386; United States v. Kessler, 1 Bald. 28; United States v. Wilson, 3 Blatchf 438.) But as yet it has not done so.

The celebrated case of Reg. v. Keyn, Law R. 2 Ex. Div.