38 FEDERAL nE1>oE*rEa.
tent to commit an offense, lie, as many ill-advised persons would
under the circumstances, left the military rendezvous, upon the as-
sumption that his enlistment· was void, and that he could not be de-
tained in the service.
It is not claimed in this case that charges have been preferred
“ against this man for any military offense, or that a court has been
organized to try him. The most that can be said is that if the
proper officers see Ht to prefer charges against him for desertion, he
may be tried; but this, I am of opinion, does not divest this court of
jurisdiction to discharge him on habeas corpus if he was not legally
enlisted. This question was very fully discussed by Mr. Justice
Cmrroan in the case of Seavey v. Seymour, 3 Cliff. 439, and it was
there held that, although it is made the duty of the secretary of war
to discharge any person illegally enlisted as a soldier, that delegation
of power to the secretary of war did not deprive the courts of the
power to discharge under writ of habeas corpus, this writ being the,
remedy prescribed by the constitution for any illegal restraint of per-
sonal liberty. _
I am, therefore, of opinion that the relator is illegally held in cus-
tody by these respondents, and should be discharged.
In re A11 Lime.
(Orrcuit Uour', D. Ualqbrnia. September 24, 1883.)
1. Tamrrms nm LAWS—(}ON'B‘LICTING Pnovisxoms.
. An act of congress upon a subject within its legislative power is as binding
upon the courts as a treaty on the same subject. Both are binding, except
as the latter one conflicts or interferes with the former. Whether a treaty has
been violated by our legislation so as to be the proper occasion of complaint by
a foreign government, is not a judicial question. To the courts, it is simply
the case of conflicting laws, the last modifying or superseding the earlier.
2. CH1NnsE fMMIGRATIOIT—BRITISH Snmnors.
A Chinese laborer, born on the Island of Hong Kong after its cession to Great
Britain, is within the provisions of the act of congress of May 6, 18-82, restrict-
ing the immigration of Chinese laborers to the United States. The purpose of
the act was to exclude laborers coming from China subject to the stipulations
of the treaty of 1880 with that country, and to exclude laborers of the Chinese
race coming from any other part of the world.
Habeas Corpus.
Van Duser ct Teare, for petitioner.
I. E. McElrath, for captain of vessel.
United States District Attorney, for collector of port. .
Before F1EL1>, Circuit Justice, and Sswvmz, Circuit Judge.
FIELD, Justice. The petitioner sets forth that he is unlawfully
restrained of his liberty, and detained on board of the steam-ship
Oceanic by its captain, in the harbor of San Francisco; and that the