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."

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. 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 purposes 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."

It

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

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 serv ices 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 75100 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

Sup. Ct. Rep. 617. We regard it as equally unquestionable that 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. The only matter that needs argument is that upon which the district court expressed its view-whether, properly construed, the statute purports to deal with such conduct as that of the defendants, assuming that there is no lack of power if such be its intent. Manifestly the words are broad enough to cover the case, but the argument that they have a different scope is drawn from the fact that originally this section was part of the enforcement act of May 31, 1870, ch. 114, § 6, 16 Stat. L. 141 (later, Rev. Stat. § 5508), and that by an earlier section of the same statute, § 4 (later, Rev. Stat. § 5506), [2 Fed. Stat. Annot. 870], every person who, by any unlawful means, hindered or combined with others to hinder any citizen from voting at any election in any state, etc., was subjected to a much milder penalty than that under § 6. It may be thought that the act of 1870 cannot have meant to deal a second time and in a much severer way in § 6 with what it had disposed of a few sentences before. The other sections have been repealed, but § 19, it may be said, must mean what it meant in 1870 when the enforcement act passed, and what it did mean will be seen more clearly from its original words. In its original form the section began: 'If two or more persons shall band or conspire together or go in disguise upon the public highway, or upon the premises of another, with intent to violate any provision of this act, or to injure, oppress,' etc. The source of this section in the doings of the Ku Klux and the like is obvious, and acts of violence obviously were in the mind of Congress. Naturally Congress put forth all its powers. But this section dealt with federal rights, and with all federal rights, and protected them in the lump, whereas § 4 (R. S. § 5506), 2 Fed. Stat Annot. 870], dealt only with elections, and although it dealt with them generally and might be held to cover elections of federal officers, it extended to all elections. It referred to conspiracies only as incident

to its main purpose of punishing any obstruction to voting at any election in any state. The power was doubtful and soon was held to have been exceeded. United States v. Reese, 92 U. S. 214, 23 L. ed. 563. See Logan v. United States, 144 U. S. 263, 36 L. ed. 429, 12 Sup. Ct. Rep. 617. The subject was not one that called for the most striking exercise of such power as might exist. Any overlapping that there may have been well might have escaped attention, or, if noticed, have been approved, when we consider what must have been the respective emphasis in the mind of Congress when the two sections were passed. But § 6 being devoted, as we have said, to the protection of all federal rights from conspiracies against them, naturally did not confine itself to conspiracies contemplating violence, although under the influence of the conditions then existing it put that class in the front. Just as the Fourteenth Amendment, to use the happy analogy suggested by the Solicitor General, was adopted with a view to the protection of the colored race but has been found to be equally important in its application to the rights of all, § 6 had a general scope and used general words that have become the most important now that the Ku Klux have passed away. The change of emphasis is shown by the wording already transposed in Rev. St., § 5508, and now in § 19. The clause as to going in disguise upon the highway has dropped into a subordinate place, and even there has a somewhat anomalous sound. The section now begins with sweeping general words. Those words always were in the act, and the present form gives them a congressional interpretation. Even if that interpretation would not have been held correct in an indictment under § 6, which we are far from intimating, and if we cannot interpret the past by the present, we cannot allow the past so far to affect the present as to deprive citizens of the United States of the general protection which on its face § 19 most reasonably affords." Section cited. O'Sullivan V. Felix, (1914) 233 U. S. 318, 34 S. Ct. 596, 58 U. S. (L. ed.) 980.

Vol. II, p. 7, sec. 3477.

Persons protected and waiver. — As to the effect of this section it has been several times declared by this court that the statute was intended solely for the protection of the government and its officers during the adjustment of claims, and that, after al

lowance, the protection may be invoked or waived, as they, in their judgment, deem proper. McGowan v. Parish, (1915) 237 U. S. 285, 35 S. Ct. 543, 59 U. S. (L. ed.) 955.

Vol. II, p. 55, sec. 1059.

The Court of Claims has no general jurisdiction over claims against the United States and can take Cognizance only of those which by the terms of some act of Congress are committed to it. Thurston v. U. S., (1914) 232 U. S. 469, 34 S. Ct. 394, 58 U. S. (L. ed.) 688.

Cases sounding in tort.-To the same effect as the original note see Basso v. U. S., (1916) 239 U. S. 602 (affirming 49 Ct. Cl. 702) wherein the court said: "Appellant concedes that 'the cause of action not merely "sounds in tort" but is based wholly upon the tortious actions of the agents of the United States.' He, however, contends that the Court of Claims has jurisdiction under the Tucker Act over claims ex delicto founded upon the Constitution of the United States. And this, he further contends, is supported by the recent decisions of this

Vol. II, p. 80, sec. 1.

Claims founded on tort. Under the "Tucker Act" there is no jurisdiction in the Court of Claims or District Courts of the United States to recover for acts merely tortious, the statute providing that there

Vol. II, p. 84, sec. 5.

Section still in force. - The Judiciary Code by section 297 (see 1912 Supp. p. 250) expressly saved this section from repeal. U. S. v. Hvoslef, (1915) 237 U. S. 1, 35 S. Ct. 459, 59 U. S. (L. ed.) 813; Thames, etc., Marine Ins. Co. v. U. S., (1915) 237 U. S. 19, 35 S. Ct. 496, 59 U. S. (L. ed.) 821, L.R.A. 1915D 1087; Archbald v. United States, (M. D. Pa. 1914) 218 Fed. 270.

Place of filing petition. — Filing petition in district of residence of plaintiff. - The provision of the act that the petition be filed in the district of the residence of the plaintiff would seem to be intended for his benefit, but in any event his failure to file it there does not go to the jurisdiction of the court and may be waived by the law officers of the government. A general appearance operates as such a waiver. United States v. New York, etc. Steamship Co., (C. C. A. 2d Cir. 1914) 216 Fed. 61.

Sufficiency of petition to show jurisdiction. In U. S. v. Hvoselef, (1915) 237 U. S. 1, 35 S. Ct. 459, 59 U. S. (L.ed.) 813, an objection was made to the_jurisdiction of the District Court of New York on the ground that the suit was not brought "in the district where the plaintiff resides." On this point the court said: "The peti

court, and relies especially upon Dooley v. United States, 182 U. S. 222. But that case did not overrule Schillinger v. United States, 155 U. S. 163, which, counsel says, holds directly contrary to his contention and that he has not the ingenuity to suggest how the court can now decide the case at bar in appellant's favor without at least by implication overruling the Schillinger Case: We are not disposed to overrule the case, either directly or by implication. The court found nothing in it antagonistic to the reasoning and conclusion reached in the Dooley Case. In United States v. Lynah, 188 U. S. 445, the Schillinger Case was treated as subsisting authority, and Mr. Justice Brown, who wrote the opinion in the Dooley Case, in his concurring opinion in the Lynah Case, considered it as correctly declaring the law."

shall be no recovery except in cases not sounding in tort. United States v. Buffalo Pitts Co., (1914) 234 U. S. 228, 34 S. Ct. 840, 58 U. S. (L. ed.) 1290.

Reformation of contract. In cases within the general jurisdiction of the Court of Claims, it has jurisdiction to reform a contract for the purpose of determining whether the claim if established is a valid one against the United States. William Cramp, etc., Building Co. v. United States, (1915) 239 U. S. 221, 36 S. Ct. 70, affirming (1911) 46 Ct. Cl. 521.

tion alleged that petitioners were surviving members of a copartnership engaged in business in the city of New York 'within the district aforesaid' and that their 'business and partnership residence was and is in the Borough of Manhattan, City of New York, in said district.' It is said that the allegation was insufficient to show the residence required by the statute, but it does not appear that any such objection was made in the court below. The general language of the demurrer with respect to jurisdiction had appropriate reference to the general authority of the court to entertain such a suit against the United States and to the jurisdiction of the subject-matter of the action. But assuming that the subjectmatter was within the jurisdiction of the court the requirement as to the particular Idistrict within which the suit should be brought was but a modal and formal one which could be waived, and must be deemed to be waived in the absence of specific objection upon this ground before pleading to the merits." See to the same effect Thames, etc. Marine Ins. Co. v. U. S., (1915) 237 U. S. 19, 35 S. Ct. 496, 59 U. S. (L. ed.) 821, L.R.A. 1915D 1087.