IN RE YUKG SING BEE.
to its true import, any valid law that congress may, in its wisdom, see fit to enact upon this, or any other, subject. That is what the judicial department of this government is established for, and when it ceases to perform its whole duty fearlessly and persistently by reason of popular clamor, or other improper outside influences, it will have ceased to perform its proper functions, and failed to answer the purposes of its creation. It is not the function of the courts to abrogate an unsatisfactory law by arbitrarily refusing to enforce it. The only proper mode of getting rid of such a law, is, for congress to repeal or modify it. We entertain no doubt that the act in question is valid, and that the petitioner is expressly forbidden by its terms to enter the United States, and that it would be unlawful for him to do so. The result is that ho is not unlawfully restrained of his liberty, and that he must be remanded; and it is .so ordered.
YUNG SING HEE.
(Oircuit Oourt, D. Oregon. October 10; 1888.)
A perso.iJborn in the United States of Chinese parents is, by th& ruleo! the common law, and by force of the fourteenth alllendment, a citizen of the United States, and, when restrained of his or her liberty of locomotion therein, may be delivered therefrom, on habeas corpus, by the proper national· court. .Ea; parte Ohin King, 35 Fed. Rep. 354. affirmed.
BORN IN UNITED STATES-CITIZENSHIP.
J. ;SAME-EXCLUSION . Neither of the exclusion acts of 1882, 1884, or 1888 purport to exclude from· the United States the descendants of Vhinese. born within the jurisdiction thereof. . :8. CONSTITUTIONAL LAW-BILLS OF ATTAINDER-BANISHMENT. A legislative act which undertakes to inflict the punishment of banishment or exile from the United States on a citizen thereof, for any cause or no canse, or because of his race or color. is a bill of attainder within the prohibition of " the constitution, and therefore void. .
,(SyllabUS by the Oourt.)
Petition for Writ of Habeas Oorpus. Paul R. Deady, for petitioner. . . Lewis L. McArthur, for the United States.
DEADY, J. The writ was allowed in this case on October 8, 1888, ;and the hearing took place on the 10th of the same month. . The petition of Yung Sing Hee states that she was born in ,San Fran.. ' on January 15, 1866, and isa citizen of the· Unitlid States; that· s4f3 is restrained of her liberty by John R. Hill, the.master of the steam-" :shjp panube, on. which she took passage from Vancouver,B. G., for . PprtJand, .or., .on October 6, .188§.;.. the c()llecton>f.customs of this'
port refuses. to allow her to be landed from said vessel on the ground that she is a Chinese woman, without a return certificate, and that, under the recent exclusion act, her landing is prohibited under any circumstances. The return of the master to the writ admits the fact stated in the petition as to the custody of the petitioner. On the hearing the United States district attorney intervened on behalf of the United States, and contested the allegation that the petitioner is a citizen of the same, and entitled to land therein. On the hearing it was satisfactorily shown that Yong Soy Yat is a Chinese merchant of this city, where he has resided seven or eight years, as a member of the firm of Tay Chung Lung. That for the 19 years prior to coming here he lived,.in San Francisco, where he kept a store, and about 1863 was married to Ka Ho, a Chinese woman, at 729 Sacramento street, by whom he harl two children, a boy and a girl; the former being born in 1864, and the latter in 1865. That about eight years ago the mother and the two children went to China on the steamer Oceanic, where the former died not long since, and the boy remains with his parental grandfather, at 8choo1. The petitioner is this girl. She came from China on the Canadian Pacific steam-ship to Victoria, a short time since, and from there here on the Danube, as stated in the petition. The testimony on which these facts are found, although given by Chinese persons, is consistent, reasonable, and convincing. It is probably much more entitled to credit than that on which hundreds of Europeans are every day admitted to become citizens of the United States. The father was directly corroborated in the main by the testimony of two Chinese merchants of this city, who li\'ed near him, and knew him and his family, in San Francisco, from about the time of his marriage until the departure of the latter for China; and a rigid cross-examination failed to impair in the least the probability of their statements, or to east a shadpw of suspicion on their honesty. On this state of facts, both by the common law and the fourteenth amendment, the petitioner is an American citizen, and is entitled to come and go within the United States as any other such citizen. She was born withm or snbject to the jurisdiction of the United States, and is therefore a citizen thereof. See Ex pa1·te Chin King, 35 Fed. Rep. 354, (lately decided in this court;) InreLook Tin Sing, 10Sawy. 353, 21 Fed. Rep. . This being so, she is not within the purview of any of the restriction acts, which do not apply to American citizens of Chinese descent, any more than to those of European descent. The act of 1882 (22 St. 58) relates exclusively to "Chinese laborers," "skilled or ullskilled;" and 80 does the actof 1884 (23 St. 118.) Section 15 of the latter act declares that it "shall apply to all subjects of China, and Chinese, whether subjects of China or any other foreign IJower." This clause was doubtless inserted to bring the Chinese residents of the British colony Hong Kong within the purview of the act;
IN RE YUNG SING HEE.
but it also, by a necessary implication, limits its operation to Chinese who are subjects of China or some foreign power, not including such as are citizens of the United States. The recent act of October 1, 1888, purports to be a supplement to that of 1882, and is confined in terms to "Chinese laborers." As to them, it changes the law so as to prevent, if literally construed, the return of a Chinese laborer to the United States under any circumstancesj not even when he left the country on the faith of a treaty with this government, and its certificate, giving him the right to return, and is within the sight of the American shore, on his way back, when the act takes effect. So harsh and unjust a measure as this concerning the intercourse between friendly nations maintaining diplomatic relations is something UIlprecedented in this age of .the world, and can only be accounted for by the fact that a presidential election is pending, 10 which each political party is trying to outbid the other for the "sand lot" vote of the Pacific coast, and particularly for that of San Francisco. Neither is the petitioner a laborer. Indeed, I suppose no Chinese woman is a "laborer" within the of the statute. This one, at least, does not belong to that class. She is the daughter of a merchant, and the testimony is that she does not work at anything but sewing, and not at that for a living, but only for her own purposes. But still, were she not a citizen of the United States, and she is nota "laborer," she would not be entitled to land, except on the certificate of her own government as to her identity and occupation or profession. 23 St. 116. However, if the exclusion act is intended to apply to citizens of the United States of Chinese descent, it is so far beyond the power of congress to enact, and therefore uneonstituuonal and void. The constitution declares, (article 1, § 9,) "No bill of attainder or ex post facto lil.w shall be passed." A bill of attainder is a special act of the legislature, which inflicts punishment without a judicial trial. If the punishment is less than death, the act is called a "bill of pains and penalties." Cummings v. A-fissouri, 4 Wall 382. The phrase "bill of attainder," as used in the constitution, includes bills of pains and penalties. Fletcher v. Peck, 6 Cranch, 138. Banishment or exile is a recognized mode of punishment. Rap. & L. Law Diet. "Banishment." The bill against the Earl of Clarendon, passed in the reign of Charles II., enacted that the earl should suffel perpetual exile, and be forever banished from the realm. Hume's History of England. A legislative act which undertakes to inflict the punishment of banishment or exile from the United States on a citizen thereof, and thereby deprive him of the right to live in the country, for any cause or no cause, or because of his race or color,is a bill of attainder, within the clause of the constitution of the United States, prohibiting the passage of sucb bills, and is therefore void.
"Bills of ihis sort," says Mr. Justice Story, "have been most usually passed in England in times of rebellion or gross subserviency to the crown, or of violent political excitements; peIiods, in which all nations are most liable (as well the free as the enslaved) to forget their duties, and to trample upon the rights and liberties of others." Comm. § 1344. "In these cases," says Mr. Justice FIELD, "the legislative body, in addition to its legitimate functions, exercises the powers and office ofa judge; it assumes,in the language of the text-books, judicial magistracy; it pronounces upon the guilt of the party, without any of the forms or safeguards of trial; it determines the sufficiency of the proofs produced, ·whether conformable to the rules of evidence or otherwise; and it fixes tlie degree of punishment in accordance with its own notions of the enormity ofthe offense." Cummings v. 4 Wall. 323. The petitioner is entitled to her discharge, and it is so ordered.
In re TONG
SICK et al.
(Oircuit Court, N. D. California. October 17,
OmNESE-ExCLUSION ACT OF 188S-DEPARTURE FROM UNITED STATES.
Chinese subjects purchasing- through tickets, lind in an American vessel, from one American port to another. who do not leave the vessel when she; having leave to do so. touches at a foreign port. have not departed from the United States within thl> meaning of the Chinese exclusion act of congress of October 1, 1888. .
Petition for Writ of HabcasOorpus. T ,D. Riordan, for petitioners. John T. Carey, U. S. Atty., contra. , Before SAWYER, Circuit Judge, and HOFFMAN, District Judge. SAWYER, J. The three petitioners being Chinese subjects, residents of Washington Territory. embarked on the American steam-ship Uma·tilla, for San Francisco, Cal., since October 1, 1888, having purchased a through ticket. The steam-ship, with leave to do so, touched at Victoria, .B.. C.but the petitioners did not go ashore, or leave .the ship. On her arriv.alat San Francfsco, the collector of the port refused to permit the petitioners to land, on the ground that they had departed from the United States since the passage of the late exclusion act, the ship. having stopped at a foreign port, and that the late act forbade their re. ·turn. Weare satisfied that there was no departure from the United States, within the meaning of the act. They left one American port for another, upon a throughpllssage upon an American vessel, without any intention of landing in any foreign country. They were all the timewithin the jurisdiction of the United States, and, constructively, in the territory of the United States. An analogous question was decided by