In re Gee Hop

• Decision Date: 27 December 1895
• Docket Number: 11,200.
• Citation: 71 F. 274
• Parties: In Re GEE HOP.
• Court: U.S. District Court — Northern District of California

71 F. 274

In Re GEE HOP.

No. 11,200.

United States District Court, N.D. California.

December 27, 1895

H. S Foote, U.S. Dist. Atty., and Bert Schlessinger, Asst. U.S Dist. atty.

Lyman I. Mowry, for Gee Hop.

MORROW District Judge.

A petition for a writ of habeas corpus was filed on behalf of Gee Hop, alleging that he was detained and restrained of his liberty on board the steamship City of Peking by the master thereof; that he has applied to the collector for the port of San Francisco to be permitted to land, but said application has been denied. He therefore prays for a writ of habeas corpus, that he may be restored to his liberty, and allowed to land and enter the United States. The petition and agreed statement of facts show that Gee Hop was naturalized as a citizen of the United States by the court of common pleas in and for the county of Camden, state of New Jersey, on the 8th day of May, 1890; that, thereafter, to wit, on the 12th day of May, 1890, he obtained from the department of state at Washington a passport as a citizen of the United States, and armed with these documents, he departed from the United States upon a visit to China, and returned to the United States on September 16, 1895; that he demanded of the collector of the port of San Francisco that he be allowed to land from the steamship on which he had returned, and to enter into and remain in the United States, on the ground that he was and is a citizen of the United States; that he presented to said collector his certificate of naturalization, and the passport issued to him by the department of state, as evidence of his right to enter into and remain in the United States, but said collector refused and still refuses, to permit said Gee Hop to enter or remain in the United States. The district attorney has filed an intervention, denying that Gee Hop has the right to enter this country. The special referee and examiner, to whom the matter was referred to ascertain and report the facts, recommends the remand of Gee Hop, for the reason that there is no law conferring the right of naturalization upon Mongolians or natives of China; that the judgment of the court of common pleas of the state of New Jersey, naturalizing said Gee Hop, is absolutely null and void, for want of jurisdiction; and that, therefore, Gee Hop is not a citizen of the United States, as claimed by him, and cannot be permitted to land in this country.

In this conclusion I entirely agree. The matter of naturalization is exclusively within the control of the government of the United States, and not of the states. Article 1, Sec. 8, of the constitution of the United States provides that congress shall have power 'to establish an uniform rule of naturalization. ' By section 2165 of the Revised Statutes, the power of naturalizing aliens is conferred upon the circuit or district courts of the United States, or a district of supreme court of the territories, or a court of record of any of the states having common-law jurisdiction and a seal and clerk. But, while courts of record of a state, having common-law jurisdiction and a clerk and seal, have the power to naturalize, this, obviously, must be done in conformity with the uniform laws promulgated by the congress of the United States. That congress has never contemplated or intended to confer the right of naturalization upon Mongolians, or natives of China, is palpable by a mere reference to the laws upon the subject of naturalization. Section 2169 of the Revised Statutes, under the title 'Naturalization,' reads:

'The provisions of this title shall apply to aliens (being free white persons, and to aliens) of African nativity, and to persons of African descent.'

Mongolians, or persons belonging to the Chinese race, are not included in this act. This was the view held by Judge Sawyer, sitting on the circuit bench for this circuit (Ninth), in Re Ah Yup, 5 Sawy. 155, Fed. Cas. No. 104, where the subject was very learnedly and elaborately discussed and considered. He says, in summing up his conclusions:

'Thus, whatever latitudinarian construction might otherwise have been given to the term 'white person,' it is entirely clear that congress intended, by this legislation, to exclude Mongolians from the right of naturalization. I am therefore of the opinion that a native of China, of the Mongolian race, is not a white person, within the meaning of the act of congress.'

But if there could be any question as to the meaning of the provision above referred to with reference to Mongolians, the matter is settled and concluded by the imperative and unmistakable...