One of the most far-reaching cases in immigration law, the Supreme Court ruled for the first time that 14th Amendment to the Constitution applied to all people born in the United States "regardless of race or color." Thus, Wong Kim Ark, who was born in the U.S., was considered a citizen by birth and could not be prevented from returning to live in America after a trip to China. This ruling is now under attack today by anti-immigration groups.

 

MR. JUSTICE GRAY, after stating the case, delivered the opinion of the court.

The facts of this case, as agreed by the parties, are as follows:

Wong Kim Ark was born in 1873 in the city of San Francisco, in the State of California and and United States of America, and was and is a laborer. His father and mother were persons of Chinese descent, and subjects of the Emperor of China; they were at the time of his birth domiciled residents of the United States, having previously established and still enjoying a permanent residence therein at San Francisco; they continued to reside and remain in the United States until 1890, when they departed for China; and during all the time of their residence in the United States they were engaged in business, and were never employed in any diplomatic or official capacity under the Emperor of China. Wong Kim Ark, ever since his birth, has had but one residence, to wit, in California, within the United States, and has there resided, claiming to be a citizen of the United States, and has never lost or changed that residence, or gained or acquired another residence; and neither he, nor his parents acting for him, ever renounced his allegiance to the United States, or did or committed any act or thing to exclude him [653] therefrom. In 1890 (when he must have been about seventeen years of age) he departed for China on a temporary visit and with the intention of returning to the United States, and did return thereto by sea in the same year, and was permitted by the collector of customs to enter the United States, upon the sole ground that he was a native-born citizen of the United States. After such return, he remained in the United States, claiming to be a citizen thereof, until 1894, when he (being about twenty-one years of age, but whether a little above or a little under that age does not appear) again departed for China on a temporary visit and with the intention of returning to the United States; and he did return thereto by sea in August, 1895, and applied to the collector of customs for permission to land; and was denied such permission, upon the sole ground that he was not a citizen of the United States, the acts of Congress, known as the Chinese Exclusion Acts, prohibiting persons of the Chinese race, and especially Chinese laborers, from coming into the United States, do not and cannot apply to him.

The question presented by the record is whether a child born in the United States, of parents of Chinese descent, who, at the time of his birth, are subjects of the Emperor of China, but have a permanent domicil and residence in the United States, and are there carrying on business, and are not employed in any diplomatic or official capacity under the Emperor of China, becomes at the time of his birth a citizen of the United States, by virtue of the first clause of the Fourteenth Amended of the Constitution, "All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside."

I. In construing any act of legislation, whether a statute enacted by the legislature, or a constitution established by the people as the supreme law of the land, regard is to be had, not only to all parts of the act itself, and of any former act of the same law-making power, of which the act in question is an amendment; but also to the condition, and to the history, [654] of the law as previously existing, and in the light of which the new act must be read and interpreted.

The Constitution of the United States, as originally adopted, uses the words "citizen of the United States," and "natural-born citizen of the United States." by the original Constitution, every representative in Congress is required to have been "seven years a citizen of the United States," and every Senator to have been "nine years a citizen of the United States;" and "no person except a natural-born citizen, or a citizen of the United States at the time of the adoption of this Constitution, shall be eligible to the office of President." The Fourteenth Article of Amendment, besides declaring that "all persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and to the State wherein they reside," also declares that "no State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws." And the Fifteenth Article of Amendment declares that "the right of citizens of the United States to vote shall not be denied or abridged by the United States, or by any State, on account of race, color or previous condition of servitude."

The Constitution nowhere defines the meaning of these words, either by way of inclusion or of exclusion, except in so far as this is done by the affirmative declaration that "all persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States." In this, as in other respects, it must be interpreted in the light of common law, the principles and history of which were familiarly known to the framers of the Constitution. Minor v. Happersett, 21 Wall. 162; Ex parte Wilson, 114 U.S. 417, 422; Boyd v. United States, 116 U.S. 616, 624, 625; Smith v. Alabama, 124 U.S. 465. The language of the Constitution, as has been well said, could not be understood without reference to the common law. 1 Ken Com. 336; Bradley, J., in Moore v. United States, 91 U.S. 270, 274.

[655] In Minor v. Happersett, Chief Justice Waite, when constructing, in behalf of the court, the very provision of the Fourteenth Amendment now in question, said: "The Constitution does not, in words, say who shall be natural-born citizens. Resort must be had elsewhere to ascertain that." and he proceeded to resort to the common law as an aid in the construction of this provision. 21 Wall. 167.

In Smith v. Alabama, Mr. Justice Matthews, delivering the judgment of the court, said: "There is no common law of the United States, in the sense of a national customary law, distinct from the common law of England as adopted by the several States each for itself, applied as its local law, and subject to such alteration as may be provided by its own statutes." "There is, however, one clear exception to the statement that there is no national common law. The interpretation of the Constitution of the United States is necessarily influenced by the fact that its provisions are framed in the language of the English common law, and are to be read in the light of its history." 124 U.S. 478.

II. The fundamental principle of the common law with regard to English nationality was birth within the allegiance, also called "ligealty," "obedience," "faith" or "power," of the King. The principle embraced all persons born within the King's allegiance and subject to his protection. Such allegiance and protection were mutual--as expressed in the maxim, protectio trahit subjectionem, et subjectio protectionem--and were not restricted to natural-born subjects and naturalized subjects, or to those who had taken an oath of allegiance; but were predicable of aliens in amity, so long as they were within the kingdom. Children, born in England, of such aliens, were therefore natural-born subjects. but the children, born within the realm, of foreign ambassadors, or the children of alien enemies, born during and within their hostile occupation of part of the King's dominions, were not natural-born subjects, because not born within the allegiance, the obedience, or the power, or, as would be said at this day, within the jurisdiction of the King.

This fundamental principle, with these qualifications or [656] explanations of it, was clearly, though quaintly, stated in the leading case, known as Calvin's Case, or the Case of the Postnati, decided in 1608, after a hearing in the Exchequer Chamber before the Lord Chancellor and all the Judges of England, and reported by Lord Coke and by Lord Ellesmere. Calvin's Case, 7 Rep. 1, 4b-61, 18a, 18b; Ellesmere on Postnati, 62-64; S.C., 2 Howell's State Trials, 559, 607, 613-617, 639, 640, 659, 679.

The English authorities ever since are to the like effect. Co. Lit. 8a, 128b; Lord Hale, in Hargrave's Law Tracts, 210, and in 1 Hale P.C. 61, 62; 1 Bl. Com. 366, 369, 370, 374; 4 Bl. Com 74, 92; Lord Kenyon, in Doe v. Jones, 4 T. R. 300, 308; Cockburn on Nationality, 7; Dicey Conflict of laws, pp. 173-177, 741.

In Udny v. Udny, (1869) L. R. 1 H. L. Sc. 441, the point decided was one of inheritance, depending upon the question whether the domicil of the father was in England or in Scotland, he being in either alternative a British subject. Lord Chancellor Hatherley said: "The question of naturalization and of allegiance is distinct from that of domicil." p. 452. Lord Westbury, in the passage relied on by the counsel for the United States, began by saying: "The law of England, and of almost all civilized countries, ascribes to each individual at his birth two distinct legal states or conditions: one, by virtue of which he becomes the subject of some particular country, binding him by the tie of natural allegiance, and which may be called political status; another, by virtue of which he has ascribed to him the character of a citizen of some particular country, and as such is possessed of certain municipal rights, and subject to certain obligations, which latter character is the civil status or condition of the individual, and may be quite different from his political status." And then, while maintaining that the civil status is universally governed by the single principle of domicil, domicilium, the criterion established by the international law for the purpose of determining civil status, and the basis on which "the personal rights of the party, that is to say, the law which determines his majority or minority, his marriage, succession, testacy or [657] intestacy, must depend;" he yet distinctly recognized that a man's political status, his country, patria, and his "nationality, that is, natural allegiance," "may depend on different laws in different countries." pp. 457, 560. He evidently used the word "citizen," not as equivalent to "subject," but rather to "inhabitant;" and had no thought of impeaching the established rule that all persons born under British dominion are natural-born subjects.

Lord Chief Justice Cockburn, in the same year, reviewing the whole matter, said: "By the common law of England, every person born within the dominions of the Crown, no matter whether of English or of foreign parents, and, in the latter case, whether the parents were settled, or merely temporarily sojourning, in the country, was an English subject; save only the children of foreign ambassadors (who were excepted because their fathers carried their own nationality with them), or a child born to a foreigner during the hostile occupation of any part of the territories of England. No effect appears to have been given to descent as a source of nationality." Cockburn on Nationality, 7.

Mr. Dicey, in his careful and thoughtful Digest of the Law of England with reference to the Conflict of Laws, published in 1896, states the following propositions, his principal rules being printed below in italics: "`British subject' means any person who owes permanent allegiance to the Crown. `Permanent' allegiance is used to distinguish the allegiance of a British subject from the allegiance of an alien who, because he is within the British dominions, owes `temporary' allegiance to the Crown. `Natural-born British subject' means a British subject who has become a British subject at the moment of his birth." "Subject tot he exceptions hereinafter mentioned, any person who (whatever the nationality of his parents) is born within the British dominions is a natural-born British subject. This rule contains the leading principle of English law on the subject of British nationality." The exceptions afterwards mentioned by Mr. Dicey are only these two: "1. Any person who (his father being an alien enemy) is born in a part of the British dominions, which at the time of such [658] person's birth is in hostile occupation, is an alien." "2. Any person whose father (being an alien) is at the time of such person's birth an ambassador or other diplomatic agent accredited to the Crown by the Sovereign of a foreign State is (though born within the British dominions) an alien." And he adds: "The exceptional and unimportant instances in which birth within the British dominions does not of itself confer British nationality are due to the fact that, though at common law nationality or allegiance in substance depended on the place of a person's birth, it in theory at least depended, not upon the locality of a mans' birth, but upon his being born within the jurisdiction and allegiance of the King of England; and it might occasionally happen that a person was born within the dominions without being born within the allegiance, or, in other words, under the protection and control of the Crown." Dicey Conflict of Laws, pp. 173-177, 741.

It thus clearly appears that by the law of England for the last three centuries, beginning before the settlement of this country, and continuing to the present day, aliens, while residing in the dominions possessed by the Crown of England, were within the allegiance, the obedience, the faith or loyalty, the protection, the power, the jurisdiction, of the English Sovereign; and therefore every child born in England of alien parents was a natural-born subject, unless the child of an ambassador or other diplomatic agent of a foreign State, or of an alien enemy in hostile occupation of the place where the child was born.

III. The same rule was in force in all the English Colonies upon this continent down to the time of the Declaration of Independence, and in the United States afterwards, and continued to prevail under the Constitution as originally established.

In the early case of The Charming Betsy, (1804) it appears to have been assumed by this court that all persons born in the United States were citizens of the United states; Chief Justice Marshall saying: "Whether a person born within the United States, or becoming a citizen according to the established laws of the country, can divest himself absolutely of [659] that character otherwise than in such manner as may be prescribed by law, is a question which it is not necessary at present to decide." 2 Cranch, 64, 119.

In Inglis v. Sailors' Snug harbor, (1830) 3 Pet. 99, in which the plaintiff was born in the city of New York, about the time of the Declaration of Independence, the justices of this court (while differing in opinion upon other points) all agreed that the law of England as to citizenship by birth was the law of the English Colonies in America. Mr. Justice Thompson, speaking for the majority of the court said: "It is universally admitted, both in the English courts and in those of our own country, that all persons born within the Colonies of North America, whilst subject to the Crown of Great Britain, were natural-born British subjects." 3 Pet. 120. Mr. Justice Johnson said: "He was entitled to inherit as a citizen born of the State of New York." 3 pet. 136. Mr. Justice Story stated the reasons upon this point more at large, referring to Calvin's Case, Blackstone's Commentaries, and Doe v. Jones, above cited, and saying: "Allegiance is nothing more than the tie or duty of obedience of a subject to the sovereign under whose protection he is; and allegiance by birth is that which arises from being born within the dominions and under the protection of a particular sovereign. Two things usually concur to create citizenship: First, birth locally within the dominions of the sovereign; and, second, birth within the protection and obedience, or, in other words, within the ligeance of the sovereign. That is, the party must be born within a place where the sovereign is at the time in full possession and exercise of his power, and the party must also at his birth derive protection from, and consequently owe obedience or allegiance to, the sovereign, as such, de facto. There are some exceptions which are founded upon peculiar reasons, and which, indeed, illustrate and confirm the general doctrine. Thus, a person who is born on the ocean is a subject of the prince to whom his parents then owe allegiance; for he is still deemed under the protection of his sovereign, and born in a place where he has dominion in common with all other sovereigns. So the children of an ambassador are held to be [660] subjects of the prince whom he represents, although born under the actual protection and in the dominions of a foreign prince." 3 Pet. 155. "The children of enemies, born in a place within the dominions of another sovereign, then occupied by them by conquest, are still aliens." 3 Pet. 156. "Nothing is better settled at the common law than the doctrine that the children, even of aliens, born in a country, while the parents are resident there under the protection of the government, and owing a temporary allegiance thereto, are subjects by birth." 3 Pet. 164.

I Shanks v. Dupont, 3 Pet. 242, decided (as appears by the records of this court) on the same day as the last case, it was held that a woman born in South Carolina before the Declaration of Independence, married to an English officer in Charleston during its occupation by the British forces in the Revolutionary War, and accompanying her husband on his return to England, and there remaining until her death, was a British subject, within the meaning of the Treaty of Peace of 1783, so that her title to land in South Carolina, by descent case before that treaty, was protected thereby. It was of such a case, that Mr. Justice Story, delivering the opinion of the court, said: "The incapacities of femes covert, provided by the common law, apply to their civil rights, and are for their protection and interest. But they do not reach their political rights, nor prevent their acquiring or losing a national character. Those political rights do not stand upon the mere doctrines of municipal law, applicable to ordinary transactions, but stand upon the more general principles of the law of nations." 3 Pet. 248. This last sentence was relied on by the counsel for the United States, as showing that the question whether a person is a citizen of a particular country is to be determined, not by the law of that country, but by the principles of international law. But Mr. Justice Story certainly did not mean to suggest that, independently of the treaty, there was any principle of international law which could defeat the operation of the established rule of citizenship by the birth within the United States; for he referred (p. 245) to the contemporaneous opinions in Inglis v. Sailors' Snug Harbor, [661] above cited, in which this rule had been distinctly recognized, and in which he had said (p. 162) that "each government had a right to decide for itself who should be admitted or deemed citizens;" and in his Treatise on the Conflict of Laws, published in 1834, he said that, in respect to residence in different countries or sovereignties, "there are certain principles which have been generally recognized, by tribunals administering public law, [adding, in later editions, "or the law of nations,"] as of unquestionable authority," and stated, as the first of those principles, "Persons who are born in a country are generally deemed citizen and subjects of that country." Story Conflict of Laws, Section 48.

The English statute of 11 & 12 Will. III, (1700) c. 6, entitled "An act to enable His Majesty's natural-born subjects to inherit the estate of their ancestors, either lineal or collateral, notwithstanding their father or mother were aliens," enacted that "all and every person or persons, being the King's natural-born subject or subjects, within any of the King's realms or dominions," might and should thereafter lawfully inherit and make their titles by descent to any lands "from any of their ancestors, lineal or collateral, although the father and mother, or father or mother, or other ancestor, of such person or persons, by, from, through or under whom" title should be made or derived, had been or should be "born out of the King's allegiance, and out of His Majesty's realms and dominions," as fully and effectually, as if such parents of ancestors "had been naturalized or natural-born subject or subjects within the King's dominions." 7 Statutes of the Realm, 590. It may be observed that, throughout that statute, persons born within the realm, although children of alien parents, were called "natural-born subjects." As that statute included it of course extended to the Colonies, and, not having been repealed in Maryland, was in force there. In McCreery v. Somerville, (1824) 9 Wheat. 354, which concerned the title to land in the State of Maryland, it was assumed that children born in that State of an alien who was still living, and who had not been naturalized, were "native-born citizens of the [662] United States;" and without such assumption the case would not have presented the question decided by the court, which, as stated by Mr. Justice Story in delivering the opinion, was "whether the statute applies to the case of a living alien ancestor, so as to create a title by heirship, where none would exist by the common law, if the ancestor were a natural-born subject." 9 Wheat. 356.

Again, in Levy v. McCartee, (1832) 6 Pet. 102, 112, 113, 115, which concerned a descent cast since the American Revolution, in the State of New York, where the statute of 11 & 12 Will. III had been repealed, this court, speaking by Mr. Justice Story, held that the case must rest for its decision exclusively upon the principles of the common law; and treated it as unquestionable that by that law a child born in England of alien parents was a natural-born subject; quoting the statement of Lord Coke in Co. Lit. 8a, that "if an alien cometh into England and hath issue two sons, these two sons are indigence, subjects born, because they are born within the realm;" and saying that such a child "was a native-born subject, according to the principles of the common law, stated by this court in McCreery v. Somerville, 9 Wheat. 354."

In Dred Scott v. Sandford, (1857) 19 How. 393, Mr. Justice Curtis said: "The first section of the second article of the Constitution uses the language, `a natural-born citizen.' It thus assumes that the citizenship may be acquired by birth. Undoubtedly, this language of the Constitution was used in reference to that principle of public law, well understood in this country at the time of the adoption of the Constitution, which referred citizenship to the place of birth." 19 How. 576. And to this extent no different opinion was expressed or intimated by any of the other judges.

In United States v. Rhodes, (1866) Mr. Justice Swayne, sitting in the Circuit Court, said: "All persons born in the allegiance of the King are natural-born subjects, and all persons born in the allegiance of the United States are natural-born citizens. Birth and allegiance go together. Such is the rule of the common law, and it is the common law of this country, as well as of England." "We find no warrant for the opinion [663] that this great principle of the common law has ever been changed in the United States. It has always obtained here with the same vigor, and subject only to the same exceptions, since as before the Revolution." 1 Abott (U.S.) 28, 40, 41.

The Supreme Judicial Court of Massachusetts, speaking by Mr. justice (afterwards Chief Justice) Sewall, early held that the determination of the question whether a man was a citizen or an alien was "to be governed altogether by the principles of the common law," and that it was established, with few exceptions, "that a man, born within the jurisdiction of the common law, is a citizen of the country wherein he is born. by this circumstance of his birth, he is subjected to the duty of allegiance which is claimed and enforced by the sovereign of his native land; and becomes reciprocally entitled to the protection of that sovereign, and to the other rights and advantages which are included in the term `citizenship.'" Gardner v. Ward, (1805) 2 Mass. 244, note. And again: "The doctrine of the common law is, that every man born within its jurisdiction is a subject of the sovereign of the country where he is born; and allegiance is not personal to the sovereign in the extent that has been contended for; it is due to him in his political capacity of sovereign of the territory where the person owing the allegiance was born." Kilham v. Ward, (1806) 2 Mass. 236, 265. It may here be observed that in a recent English case Lord Coleridge expressed the opinion of the Queen's Bench Division that the statutes of 4 Geo. II, (1731) c. 21, and 13 Geo. III, (1773) c. 21, (hereinafter referred to,) "clearly recognize that to the King in his politic, and not in his personal capacity, is the allegiance of his subjects due." Isaacson v. Durant, 17 Q.B.D. 54, 65.

The Supreme Court of North Carolina, speaking by Mr. Justice Gason, said: "Before our Revolution, all free persons born within the dominions of the King of Great Britain, whatever their color or complexion, were native-born British subjects; those born out of his allegiance were aliens." "Upon the Revolution, no other change took place in the law of North Carolina, than was consequent upon the transition from a colony dependent on an European King to a free [664] sovereign State;" "British subjects in North Carolina became North Carolina freemen;" "and all free persons born within the State are born citizens of the State." "The term `citizen,' as understood in our law, is precisely analogous to the term `subject' in the common law, and the change of phrase has entirely resulted from the change of government. The sovereignty has been transferred from one man to the collective body of people; and he who before was a `subject of the king' is now `a citizen of the State.'" State v. Manuel, (1838) 4 Dev. & Bat. 20, 24-26.

That all children, born within the dominion of the United States, of foreign parents holding no diplomatic office, became citizens at the time of their birth, does not appear to have been contested or doubted until more than fifty years after the adoption of the Constitution, when the matter was elaborately argued in the Court of Chancery of New York, and decided upon full consideration by Vice Chancellor Sandford in favor of their citizenship. Lynch v. Clarke, (1844) 1 Sandf. Ch. 583.

The same doctrine was repeatedly affirmed in the executive departments, as, for instance, by Mr. Marcy, Secretary of State, in 1854, 2 Whart. Int. Dig. (2d ed.) p. 394; by Attorney General Black in 1859, 9 Opinions, 373; and by Attorney General Bates in 1862, 10 Opinions, 328, 382, 395, 396.

Chancellor Kent, in his Commentaries, speaking of the "general division of the inhabitants of every country, under the comprehensive title of aliens and natives," says: "Natives are all persons born within the jurisdiction and allegiance of the United States. This is the rule of common law, without any regard or reference to the political condition or allegiance of their parents, with the exception of the children of ambassadors, who are in theory born within the allegiance of the foreign power they represent." "To create allegiance by birth, the party must be born, not only within the territory, but within the ligeance of the government. If a portion of the country be taken and held by conquest in war, the conqueror acquires the rights of the conquered as to its dominion and government, and children born in the armies of a State, while [665] abroad and occupying a foreign country, are deemed to be born in the allegiance of the sovereign to whom the army belongs. It is equally the doctrine of the English common law, that during such hostile occupation of a territory, and the parents be adhering to the enemy as subjects de facto, their children, born under such a temporary dominion, are not born under the ligeance of the conquered." 2 Kent Com. (6th ed.) 39, 42. And he elsewhere says: "And if, at common law, all human beings born within the ligeance of the King, and under the King's obedience, were natural-born subjects, and not aliens, I do not perceive why this doctrine does not apply to these United States, in all cases in which there is no express constitutional or statute declaration to the contrary." "Subject and citizen are, in a degree, convertible terms as applied to natives; and though the term citizen seems to be appropriate to republican freemen, yet we are, equally with the inhabitants of all other countries, subjects, for we are equally bound by allegiance and subjection to the government and law of the land." 2 Kent Com. 258, note.

Mr. Binney, in the second edition of a paper on the Alienigenae of the United States, printed in pamphlet at Philadelphia, with a preface bearing his signature and the date of December 1, 1853, said: "The common law principle of allegiance was the law of all the States at the time of the Revolution, and at the adoption of the Constitution; and by that principle the citizens of the United States are, with the exceptions before mentioned," (namely, foreign-born children of citizens, under statutes to be presently referred to,) "such only as are either born or made so, born within the limits and under the jurisdiction of the united States, or naturalized by the authority of law, either in one of the States before the Constitution, or since that time, by virtue of an act of the Congress of the United States." p. 20. "The right of citizenship never descends in the legal sense, either by common law, or under the common naturalization acts. It is incident to birth in the country, or it is given personally by statute. The child of an alien, if born in the country, is as much as citizen as the natural-born child of a citizen, and by operation of the same principle." [666] p. 22, note. This paper, without Mr. Binney's name, and with the note in a less complete form and not containing the passage last cited, was published (perhaps from the first edition) in the American Law Register for February, 1854. 2 Amer. Law Reg. 193, 203, 204.

IV. It was contended by one of the learned counsel for the United States that the rule of the Roman law, by which the citizenship of the child followed that of the parent, was the true rule of international law, as now recognized in most civilized countries, and had superseded the rule of the common law, depending on birth within the realm, originally founded on feudal considerations.

But at the time of the adoption of the Constitution of the United States in 1789, and long before, it would seem to have been the rule in Europe generally, as it certainly was in France, that, as said by Pothier, "citizens, true and native-born citizens, are those who are born within the extent of the dominion of France," and "mere birth within the realm gives the rights of a native-born citizen, independently of the origin of the father or mother, and of their domicil;" and children born in a foreign country, of a French father who had not established his domicil there nor given up the intention of returning, were also deemed Frenchmen, as Laurent says, by "a favor, a sort of fiction," and Calvo, "by a sort of fiction of exterritoriality, considered as born in France, and therefore invested with French nationality." Pothier Traite des Personnes, pt. 1, tit. 2, sect. 1, nos. 43, 45; Walsh-Serrant v. Walsh-Serrant, (1802) 3 Journal du Palais, 384; S. C., 8 Merlin, Jurisprudence, (5th ed.) Domicile, Section 13; Prefet du Nord v. Lebeau, (1862) Journal du Palais, 1863, 312 and note; 1 Laurent Droit Civil, no. 321; 2 Calvo Droit International, (5th ed.) Section 542; Cockburn on Nationality, 13, 14; Hall's International Law, (4th ed.) Section 68. The general principle of citizenship by birth within French territory prevailed until after the French Revolution, and was affirmed in successive constitutions, from the one adopted by the Constituent Assembly in 1791 to that of the French Republic in 1799. Constitutions et Chartes, (ed. 1830) pp. 100, 136, 148, 186. [667] The Code Napoleon of 1807 changed the law of France, and adopted, instead of the rule of country of birth, jus soli, the rule of descent or blood, jus sanguinis, as the leading principle; but an eminent commentator has observed that the framers of that code "appear not to have wholly freed themselves from the ancient rule of France, or rather, indeed, ancient rule of Europe--de la vieille regle francaise, ou plutot mem de la vieille regle europeenne--according to which nationality had always been, in former times, determined by the place of birth." 1 Demolombe Cours de Code Napoleon, (4th ed.) no. 146.

The later modifications of the rule in Europe rest upon the constitutions, laws or ordinances of the various countries, and have no important bearing upon the interpretation and effect of the Constitution of the United States. The English Naturalization Act of 33 Vict. (1870) c. 14, and the Commissioners' Report of 1869 out of which it grew, both bear date since the adoption of the Fourteenth Amendment of the Constitution; and, as observed by Mr. Dicey, that act has not affected the principle by which any person who, whatever the nationality of his parents, is born within the British dominions, acquires British nationality at birth, and is a natural-born British subject. Dicey Conflict of Laws, 741. At the time of the passage of that act, although the tendency on the continent of Europe was to make parentage, rather than birthplace, the criterion of nationality, and citizenship was denied to the native-born children of foreign parents in Germany, Switzerland, Sweden and Norway, yet it appears still to have been conferred upon such children in Holland, Denmark and Portugal, and, when claimed under certain specified conditions, in France, Belgium, Spain, Italy, Greece and Russia. Cockburn on nationality, 14-21.

There is therefore, little ground for the theory that, at the time of the adoption of the Fourteenth Amendment of the Constitution of the United States, there was any settled and definite rule of international law, generally recognized by civilized nations, inconsistent with the ancient rule of citizenship by birth within the dominion.

[668] Nor can it be doubted that it is the inherent right of every independent nation to determine for itself, and according to its own constitution and laws, what classes of persons shall be entitled to its citizenship.

Both in England and in the United States, indeed, statutes have been passed, at various times, enacting that certain issue born abroad of English subjects, or of American citizens, respectively, should inherit, to some extent at least, the rights of their parents. But those statutes applied only to cases coming within their purport; and they have never been considered, in either country, as affecting the citizenship of persons born within its dominion.

The earliest statute was passed in the reign of Edward III. In the Rolls of Parliament of 17 Edw. III, (1343) it is stated that "before these times there have been great doubt and difficulty among the Lords of this realm, and the Commons, as well men of the law as others, whether children who are born in parts beyond sea ought to bear inheritance after the death of their ancestors in England, because no certain law has been thereon ordained;" and by the King, Lords and Commons, it was unanimously agreed that "there was no manner of doubt that the children of our Lord the King, whether they were born on this side of the sea or beyond the sea, should bear the inheritance of their ancestors;" "and in regard to other children, it was agreed in this Parliament, that they also should inherit wherever they might be born in the service of the King;" but, because the Parliament was about to depart, and the business demanded great advisement and good deliberation how it should be best and most surely done, the making of a statute was put off to the next Parliament. 2 Rot. Parl. 139. By reason, apparently, of the prevalence of the plague in England, no act upon the subject was passed until 25 Edw. III, (1350) when Parliament passed an act, entitled "A statute for those who are born in parts beyond sea," by which--after reciting that "some people be in doubt if the children born in the parts beyond the sea, out of the ligeance of England, should be able to demand any inheritance within the same ligeance, or not, whereof a petition was put [669] in the Parliament" of 17 Edw. III, "and was not at the same time wholly assented"--it was (1) agreed and affirmed, "that the law of the Crown of England is, and always hath been such, that the children of the Kings of England, in whatsoever parts they be born, in England or elsewhere, be able and ought to bear the inheritance after the death of their ancestors;" (2) also agreed that certain persons named, "which were born beyond the sea, out of the ligeance of England, shall be from henceforth able to have and enjoy their inheritance after the death of their ancestors, in all parts within the ligeance of England, as well as those that should be born within the same ligeance:" (3) and further agreed "that all children inheritors, which from henceforth shall be born without the ligeance of the King, whose fathers and mothers at the time of their birth be and shall be at the faith and ligeance of the King of England, shall have and enjoy the same benefits and advantages to have and bear the inheritance within the same ligeance, as the other inheritors aforesaid, in time to come; so always, that the mothers of such children do pass the sea by the licence and wills of their husbands." 2 Rot. Parl. 231; 1 Statutes of the Realm, 310.

It has sometimes been suggested that this general provision of the statute of 25 Edw. III was declaratory of the common law. see Bacon, arguendo, in Calvin's Case, 2 Howell's State Trials, 585; Westlake and Pollock, arguendo, in De Geer v. Clarke, 1 Sandf. Ch. 583, 659, 660; Ludlam v. Ludlam, 26 N.Y. 356. But all suggestions to that effect seem to have been derived, immediately or ultimately form one or the other of these two sources: The one, the Year Book of 1 Ric. III, (1483) fol. 4, pl. 7, reporting a saying of Hussey, C.J., "that he who is born beyond the sea, and his father and mother are English, their issue inherit by the common law, but the statute makes clear, &c.,"--which, at best, was but obiter dictum, for the Chief Justice appears to have finally rested his opinion on the statute. The other, a note added to the edition of 1688 of Dyer's Reports, 224a, stating that at Trinity Term 7 Edw. III, Rot. 2 B. R., it was adjudged that children of subjects born beyond the sea in the service of the King were inheritable--which has been shown, by a search of the roll in King's Bench so referred to, to be a mistake, inasmuch as the child there in question did not appear to have been born beyond sea, but only to be living abroad. Westlake's Private International Law, (3d ed.) 324.

The statute of 25 Edw. III recites the existence of doubts as to the right of foreign-born children to inherit England; and, while it is declaratory of the rights of children of the King, and is retrospective as to the persons specifically named, yet as to all others it is, in terms, merely prospective, applying to those only "who shall be born henceforth." Mr. Binney, in his paper above cited, after a critical examination of the statute, and of the early English cases, concluded: "There is nothing in the statute which would justify the conclusion that it is declaratory of the common law in any but a single particular, namely, in regard to the children of the King; nor has it at any time been judicially held to be so." "The notion that there is any common law principle to naturalize the children born in foreign countries, of native-born American father and mother, father or mother, must be discarded. There is not, and never was, any such common law principle." Binney on Alienigenae, 14, 20; 2 Amer. Law. Reg. 199, 203. And the great weight of the English authorities, before and since he wrote, appears to support his conclusion. Calvin's Case, 7 Rep. 17a, 18a; Co. Lit. 8a, and Hargrave's note 36; 1 Bl. Com. 3737; Barrington on Statutes, (5th ed.) 268; Lord Kenyon, in doe v. Jones, 4 T. R. 300, 308; Lord Chancellor Cranworth, in Shedden v. Patrick, 1 Macq. 535, 611; Cockburn on Nationality, 7, 9; De Geer v. Stone, 22 Ch. D. 243, 252; Dicey Conflict of Laws, 178, 741. "The acquisition," says Mr. Dicey, (p. 741) "of nationality by descent, is foreign to the principles of the common law, and is based wholly upon statutory enactments."

It has been pertinently observed that if the statute of Edward III had only been declaratory of the common law, the subsequent legislation on the subject would have been wholly unnecessary. Cockburn on Nationality, 9. By the [671] statute of 29 Car. II, (1677) c. 6, Section 1, entitled "An act for the naturalization of children of His Majesty's subjects born in foreign countries during the late troubles," all persons who at any time between June 14, 1641, and March 24, 16660, "were born out of His Majesty's dominions, and whose fathers or mothers were natural-born subjects of this realm," were declared to be natural-born subjects. By the statute of 7 Anne, (1708) c. 5, Section 3, "the children of all natural-born subjects, born out of the ligeance of Her Majesty, her heirs and successors"--explained by the statute of 4 Geo. II, (1731) c. 21, to mean all children born out of the ligeance of the Crown of England, "whose fathers were or shall be natural-born subjects of the Crown of England, or of Great Britain, at the time of the birth of such children respectively"--"shall be deemed, adjudged and taken to be natural-born subjects of this kingdom, to all intents, constructions and purposes whatsoever." That statute was limited to foreign-born children of natural-born subjects; and was extended by the statute of 13 Geo. III, (1773) c. 21, to foreign-born grandchildren; or, as put by Mr. Dicey, "British nationality does not pass by descent or inheritance beyond the second generation." See De Geer v. Stone, above cited; Dicey Conflict of Laws, 742.

Moreover, under those statutes, as is stated in the Report in 1869 of the Commissioners for inquiring into the Laws of Naturalization and Allegiance, "no attempt has ever been made on the part of the British Government, (unless in Eastern countries where special jurisdiction is conceded by treaty,) to enforce claims upon, or to assert rights in respect of, persons born abroad, as against the country of their birth whilst they were resident therein, and when by its law they were invested with its nationality." In the appendix to their report are collected many such cases in which the British Government declined to interpose, the reasons being most clearly brought out in a dispatch of March 13, 1858, from Lord Malmesbury, the Foreign Secretary, to the British Ambassador at Paris, saying: "It is competent to any country to confer by general or special legislation the privileges of nationality upon those who are born out of its own territory; but it cannot confer such privileges upon such persons as against the country of their birth, when they voluntarily return to and reside therein. Those born in the territory of a nation are (as a general principle) liable when actually therein to be obligations incident to their status by birth. Great Britain considers and treats such persons as natural-born subjects, and cannot therefore deny the right of other nations to do the same. But Great Britain cannot permit the nationality of the children of foreign parents born within her territory to be questioned." Naturalization Commission Report, pp. viii, 67; U. S. Foreign Relations, 1873-1784, pp. 1237, 1337. See also Drummond's Case, (1834) 2 Knapp, 295.

By the Constitution of the United States, Congress was empowered "to establish an uniform rule of naturalization." In the exercise of this power, Congress, by successive acts, beginning with the act entitled "An act to establish an uniform rule of naturalization," passed at the second session of the First Congress under the Constitution, has made provision for the admission to citizenship of three principal classes of persons: First. Aliens, having resided for a certain time "within the limits and under the jurisdiction of the United States," and naturalized individually by proceedings in a court of record. Second. Children of persons so naturalized, "dwelling within the United States, and being under the age of twenty-one years at the time of such naturalization." Third. Foreign-born children of American citizens, coming within the definitions prescribed by Congress. Acts of March 26,1790, c. 3; January 29,1795, c. 20; June 18, 1798, c. 54; 1 Stat. 103, 414, 566; April 14, 1802, c. 28; March 26, 1804, c. 47; 2 Stat. 153, 292; February 10, 1855, c. 71; 10 Stat. 604; Rev. Stat. Sections 2165, 2172, 1993.

In the act of 1790, the provision as to foreign-born children of American citizens was as follows: "The children of citizens of the United States, that may be born beyond sea, or out of the limits of the United States, shall be considered as natural-born citizens: Provided, that the right of citizenship shall not descend to persons whose fathers have never been resident in the United States." 1 Stat. 104. In 1795, this was reenacted, in the same words, except in substituting, for the words "beyond sea, or out of the limits of the United States," the words "out of the limits and jurisdiction of the United States." 1 Stat. 415.

In 1802, all former acts were repealed, and the provisions concerning children of citizens were reenacted in this form: "The children of persons duly naturalized under any of the laws of the United States, or who, previous to the passing of any law on that subject by the Government of the United States, may have become citizens of any one of the said States under the laws thereof, being under the age of twenty-one years at the time of their parents being so naturalized or admitted to the rights of citizenship, shall, if dwelling in the United States, be considered as citizens of the United States; and the children of persons who are now, or have been citizens of the United States shall, born out of the limits and jurisdiction of the United States, be considered as citizens of the United States : Provided, that the right of citizenship shall not descend to persons whose fathers have never resided within the United States." Act of April 14, 1802, c. 28, Section 4; 2 Stat. 155.

The provision of that act, concerning "the children of persons duly naturalized under any of the laws of the United States," not being restricted to the children of persons already naturalized, might well be held to include children of persons thereafter to be naturalized. 2 Kent Com. 51, 52; West v. West, 8 Paige, 433; United States v. Kellar, 11 Bissell, 314; Boyd v. Thayer, 143 U.S. 135, 177.

But the provision concerning foreign-born children, being expressly limited to the children of persons who then were or had been citizens, clearly did not include foreign-born children of any person who became a citizen since its enactment. 2 Kent Com. 52, 53; Binney on Alienigenae, 20, 25; 2 Amer. Law Reg. 203, 205. Mr. Binney's paper, as he states in his preface, was printed by him in the hope that Congress might supply this defect in our law.

In accordance with his suggestions, it was enacted by the [674] statute of February 10, 1855, c. 71, that "persons heretofore born, or hereafter to be born, out of the limits and jurisdiction of the United States, whose fathers were or shall be at the time of their birth citizens of the United States, shall be deemed and considered and are hereby declared to be citizens of the United States; Provided, however, that the rights of citizenship shall not descend to persons whose fathers never resided in the United States." 10 Stat. 604; Rev. Stat. Section 1993.

It thus clearly appears that, during the half century intervening
between 1802 and 1855, there was no legislation whatever for the
citizenship of children born abroad, during that period, of American
parents who had not become citizens of the United States before the act
of 1802; and that the act of 1855, like every other act of Congress upon
the subject, has, by express proviso, restricted the right of
citizenship, thereby conferred upon foreign-born children of American
citizens, to those children themselves, unless they became residents of
the United States. Here is nothing to countenance the theory that a
general rule of citizenship by blood or descent has displaced in this
country the fundamental rule of citizenship by birth within its
sovereignty.

So far as we are informed, there is no authority, legislative, executive
or judicial, in England or America, which maintains or intimates that
the statutes (whether considered as declaratory, or as merely
prospective,) conferring citizenship on foreign-born children of
citizens, have superseded or restricted, in any respect, the established
rule of citizenship by birth within the dominion. Even those authorities
in this country, which have gone the farthest towards holding such
statutes to be but declaratory of the common law, have distinctly
recognized and emphatically asserted the citizenship of native-born
children of foreign parents. 2 Kent Com. 39, 50, 53, 258 note; Lynch v.
Clarke, 1 Sandf. Ch. 583, 659; Ludlam v. Ludlam, 26 N.Y. 356, 371.

Passing by questions once earnestly controverted, but finally put at
rest by the fourteenth Amendment of the Constitution, it is beyond doubt
that, before the enactment of the Civil Rights Act of 1866 or the
adoption of the Constitutional Amendment, all white persons, at least,
born within the sovereignty of the United States, whether children of
citizens or of foreigners, excepting only children of ambassadors or
public ministers of a foreign government, were native-born citizens of
the United States.

V. In the fore front, both of the Fourteenth Amendment of the
Constitution, and of the Civil Rights Act of 1866, the fundamental
principle of citizenship by birth within the dominion was reaffirmed in
the most explicit and comprehensive terms.

The Civil Rights Act, passed at the first session of the Thirty-ninth
Congress, began by enacting that "all persons born in the United States,
and not subject to any foreign power, excluding Indians not taxed, are
hereby declared to be citizens of the United States; and such citizens,
of every race and color, without regard to any previous condition of
slavery or involuntary servitude, except as a punishment for crime
whereof the party shall have been duly convicted, shall have the same
right, in every State and Territory in the United States, to make and
enforce contracts, to sue, be parties and give evidence, to inherit,
purchase, lease, sell, hold and convey real and personal property, and
to full and equal benefit of all laws and proceedings for the security
of person and property, as is enjoyed by white citizens, and shall be
subject to like punishment, pains and penalties, and to none other, any
law, statute, ordinance, regulation or custom, to the contrary
notwithstanding." Act of April 9, 1866, c. 31, Section 1; 14 Stat. 27.

The same Congress, shortly afterwards, evidently thinking it unwise, and
perhaps unsafe, to leave so important a declaration of rights to depend
upon an ordinary act of legislation, which might be repealed by any
subsequent Congress, framed the Fourteenth Amendment of the
Constitution, and on June 16, 1866, by joint resolution proposed it to
the legislatures of the several States; and on July 28, 1868, the
Secretary of State issued a proclamation showing it to have been
ratified by the legislatures of the requisite number of States. 14 Stat.
358; 15 Stat. 708.

The first section of the Fourteenth Amendment of the [676] Constitution
begins with the words, "All persons born or naturalized in the United
States, and subject to the jurisdiction thereof, are citizens of the
United States and of the State wherein they reside." As appears on the
face of the amendment, as well as from the history of times, this was
not intended to impose any new restrictions upon citizenship, or to
prevent any persons from becoming citizens by the fact of birth within
the United States, who would thereby have become citizens according to
the law existing before its adoption. It is declaratory in form, and
enabling and extending in effect. Its main purpose doubtless was, as has
been often recognized by this court, to establish the citizenship of
free negroes, which had been denied in the opinion delivered by Chief
Justice Taney in Dred Scott v. Sandford, (1857) 19 How. 393; and to put
it beyond doubt that all blacks, as well as whites, born or naturalized
within the jurisdiction of the United States , are citizens of the
United States. The Slaughterhouse Cases, (1873) 16 Wall. 36, 73;
Strauder v. West Virginia, (1879) 100 U.S. 303, 306; Ex parte Virginia,
(1879) 100 U.S. 339, 345; Neal v. Delaware, (1880) 103 U.S. 370, 386;
Elk v. Wilkins, (1884) 112 U.S. 94, 101. But the opening words, "All
persons born," are general, not to say universal, restricted only by
place and jurisdiction, and not by color or race--as was clearly
recognized in all the opinions delivered in The Slaughterhouse Cases,
above cited.

In those cases, the point adjudged was that a statute of Louisiana,
granting to a particular corporation the exclusive right for twenty-five
years to have and maintain slaughterhouses within a certain, district
including the city of New Orleans, requiring all cattle intended for
sale or slaughter in that district to be brought to the yards and
slaughterhouses of the grantee, authorizing all butchers to slaughter
their cattle there, and empowering the grantee to exact a reasonable fee
for each animal slaughtered, was within the police powers of the State,
and not in conflict with the Thirteenth Amendment of the Constitution as
creating an involuntary servitude, nor with the Fourteenth Amendment as
abridging the privileges or immunities of citizens of the United States,
or as depriving persons of their liberty or property without due process
of law, or as denying to them the equal protection of the laws.

Mr. Justice Miller, delivering the opinion of the majority of the court,
after observing that the Thirteenth, Fourteenth and Fifteenth Articles
of Amendment of the Constitution were all addressed to the grievances of
the negro race, and were designed to remedy them, continued as follows:
"We do not say that no one else but the negro can share in this
protection. Both the language and spirit of these Articles are to have
their fair and just weight in any question of construction. Undoubtedly,
while negro slavery alone was in the mind of the Congress which proposed
the Thirteenth Article, it forbids any other kind of slavery, now or
hereafter. If Mexican peonage or the Chinese coolie labor system shall
develop slavery of the Mexican or Chinese race within our territory,
this Amendment may safely be trusted to make it void. And so if other
rights are assailed by the States, which properly and necessarily fall
within the protection of these Articles, that protection will apply,
though the party interested may not be of African descent." 16 Wall. 72.
And in treating of the first clause of the fourteenth Amendment, he
said: "The distinction between citizenship of the United States and
citizenship of a State is clearly recognized and established. Not only
may a man be a citizen of the United States without being a citizen of a
State, but an important element is necessary to convert the former into
the latter. He must reside within the State to make him a citizen of it,
but it is only necessary that he should be born or naturalized in the
United States to be a citizen of the Union." 16 Wall. 73, 74.

Mr. Justice Field, in a dissenting opinion, in which Chief Justice Chase
and Justices Swayne and Bradley concurred, said of the same clause: "It
recognizes in express terms, if it does not create, citizens of the
United States, and it makes their citizenship dependent upon the place
of their birth, or the fact of their adoption, and not upon the
constitution or laws of any State or the condition of their ancestry."
16 Wall. 95, 11 [678] Mr. Justice Bradley also said: "The question is
now settled by the Fourteenth Amendment itself, that citizenship of the
United States is the primary citizenship in this country; and that state
citizenship is secondary and derivative, depending upon citizenship of
the United States and the citizen's place of residence. The States have
not now, if they ever had, any power to restrict their citizenship to
any classes or persons." 16 Wall. 112. And Mr. Justice Swayne added:
"The language employed is unqualified in its scope. There is no
exception in its terms, and there can be properly none in their
application. By the language `citizens of the United States' was meant
all such citizens; and by `any person' was meant all persons within the
jurisdiction of the State. No distinction is intimated on account of
race or color. This court has no authority to interpolate a limitation
that is neither expressed or implied. Our duty is to execute the law,
not to make it. The protection provided was not intended to be confined
to those of any particular race or class, but to embrace equally all
races, classes and conditions of men." 16 Wall. 128, 129.

Mr. Justice Miller, indeed, while discussing the causes which led to the
adoption of the Fourteenth Amendment, made this remark: "The phrase,
`subject to its jurisdiction,' was intended to exclude from its
operation children of ministers, consuls, and citizens or subjects of
foreign States, born within the United States." 16 Wall. 73. This was
wholly aside from the question in judgment, and from the course of
reasoning bearing upon that question. It was unsupported by any
argument, or by an reference to authorities; and that it was not
formulated with the same care and exactness, as if the case before the
court had called for an exact definition of the phrase, is apparent from
its classing foreign ministers and consults together--whereas it was
then well settled law, as has since been recognized in a judgment of
this court in which Mr. Justice Miller concurred, that consuls, as such,
and unless expressly invested with a diplomatic character in addition to
their ordinary powers, are not considered as entrusted with the
authority to represent their sovereign in his intercourse with foreign
States or to vindicate his prerogatives, or entitled by the law of
nations to the privileges and immunities of ambassadors or public
ministers, but are subject to the jurisdiction, civil and criminal, of
the courts of the country in which they reside. 1 Kent Com. 44; Story
Conflict of Laws, Section 48; Wheaton International Law, (8th ed.)
Section 249; The Anne, (1818) e Wheat. 435, 445, 446; Gittings v.
Crawford, (1838) Taney, 1, 10; In re Baiz, (1890) 135 U.S. 403, 424.

In weighing a remark uttered under such circumstances, it is well to
bear in mind the often quotes words of Chief Justice Marshall: "It is a
maxim not to be disregarded, that general expressions, in every opinion,
are to be taken in connection with the case in which those expressions
are used. If they go beyond the case, they may be respected, but ought
not to control the judgment in a subsequent suit when the very point is
presented for decision. The reason of this maxim is obvious. The
question actually before the court is investigated with care, and
considered in its full extent. Other principles which may serve to
illustrate it are considered in their relation to the case decided, but
their possible bearing on all other cases is seldom completely
investigated." Cohens v. Virginia, (1821) 6 Wheat. 264, 399.

That neither Mr. Justice Miller, nor any of the justices who took part
in the decision of The Slaughterhouse Cases, understood the court to be
committed to the view that all children born in the United States of
citizens or subjects of foreign States were excluded from the operation
of the first sentence of the Fourteenth Amendment, is manifest from a
unanimous judgment of the court, delivered but two years later, while
all those judges but Chief Justice Chase were still on the bench, in
which Chief Justice Waite said: "Allegiance and protection are, in this
connection" (that is, in relation to citizenship,) "reciprocal
obligations. The one is a compensation for the other: allegiance for
protection, and protection for allegiance." "At common law, with the
nomenclature of which the framers of the Constitution were familiar, it
was never doubted that all children, born in a country, of [680] parents
who were its citizens, became themselves, upon their birth, citizens
also. These were natives, or natural-born citizens, as distinguished
from aliens or foreigners. Some authorities go further and include as
citizens children born within the jurisdiction, without reference to the
citizenship of their parents. As to this class there have been doubts,
but never as to the first. For the purposes of this case it is not
necessary to solve these doubts. It is sufficient, for everything we
have now to consider, that all children, born of citizen parents within
the jurisdiction, are themselves citizens." Minor v. Happersett, (1874)
21 Wall. 162, 166-168. The decision in that case was that a woman born
of citizen parents within the United States was a citizen of the United
States, although not entitled to vote, the right to the elective
franchise not being essential to citizenship. The only adjudication that
has been made by this court upon the meaning of the clause, "and subject
to the jurisdiction thereof," in the leading provision of the Fourteenth
Amendment, is Elk v. Wilkins, 112 U.S. 94, in which it was decided than
an Indian born a member of one of the Indian tribes within the United
States, which still existed and was recognized as an Indian tribe by the
United States, who had voluntarily separated himself form his tribe, and
has taken up his residence among the white citizens of a State, but who
did not appear to have been naturalized, or taxed, or in any way
recognized or treated as a citizen, either by the United States or by
the State, was not a citizen of the United States, as a person born in
the United States, "and subject to the jurisdiction thereof," within the
meaning of the clause in question.

That decision was placed upon the grounds, that the meaning of those
words was, "not merely subject in some respect or degree to the
jurisdiction of the United States, but completely subject to their
political jurisdiction, and owing them direct and immediate allegiance;"
that by the Constitution, as originally established, "Indians not taxed"
were excluded from persons according to whose numbers representatives in
Congress and direct taxes were apportioned among the several States, and
Congress was empowered to regulate commerce, not only "with foreign
nations," and among the [681] several States, but "with the Indian
tribes;" that the Indian tribes, being within the territorial limits of
the United States, were not, strictly speaking, foreign States, but were
alien nations, distinct political communities, the members of which
owed immediately allegiance to their several tribes, and were not part
of the people of the United States; that the alien and dependent
condition of the members of one of those tribes could not be put off at
their own will, without the action or assent of the United States; and
that they were never deemed citizens, except when naturalized,
collectively or individually, under explicit provisions of a treaty, or
of an act of Congress; and, therefore, that "Indians born within the
territorial limits of the United States, members of, and owing immediate
allegiance to, one of the Indian tribes (an alien, though dependent,
power), although in a geographical sense born in the United States, are
no more `born in the United States, and subject to the jurisdiction
thereof,' within the meaning of the first section of the Fourteenth
Amendment, than the children of subjects of any foreign government born
within the domain of that government, or the children born within the
United States of ambassadors or other public ministers of foreign
nations." And it was observed that the language used, in defining
citizenship, in the first section of the Civil Rights Act of 1866, by
the very Congress which framed the Fourteenth Amendment, was "all
persons born in the United States, and not subject to any foreign power,
excluding Indians not taxed." 112 U.S. 99-103.

Mr. Justice Harland and Mr. Justice Woods, dissenting, were of opinion
that the Indian in question, having severed himself from his tribe and
become a bona fide resident of a State, had thereby become subject to
the jurisdiction of the United States, within the meaning of the
Fourteenth Amendment; and, in reference to the Civil Rights Act of 1866,
said: "Beyond question, by the act, national citizenship was conferred
directly upon all persons in this country, of whatever race (excluding
only `Indians not taxed'), who were born within [682] the territorial
limits of the United States, and were not subject to any foreign power."
And that view was supported by reference to the debates in the Senate
upon that act, and to the ineffectual veto thereof by President Johnson,
in which he said: "By the first section of the bill, all persons born in
the United States, and not subject to any foreign power, excluding
Indians not taxed, are declared to be citizens of the United States.
This provision comprehends the Chinese of the Pacific States, Indians
subject to taxation, the people called Gypsies, as well as the entire
race designated as blacks, persons of color, negroes, mulattoes, and
persons of African blood. Every individual of those races, born in the
United States, is, by the bill, made a citizen of the United States."
112 U.S. 112-114. The decision in Elk v. Wilkins concerned only members
of the Indian tribes within the United States, and had no tendency to
deny citizenship to children born in the United States of foreign
parents of Caucasian, African or Mongolian descent, not in the
diplomatic service of a foreign country.

The real object of the Fourteenth Amendment of the Constitution, in
qualifying the words, "All persons born in the United States," by the
addition, "and subject to the jurisdiction thereof," would appear to
have been to exclude, by the fewest and fittest words, (besides children
of members of Indian tribes, standing in a peculiar relation to the
National Government, unknown to the common law,) the two classes of
cases--children born of alien enemies in hostile occupation, and
children of diplomatic representatives of a foreign State--both of
which, as has already been shown, by the law of England, and by our own
law, from the time of the first settlement of the English colonies in
America, had been recognized exceptions to the fundamental rule of
citizenship by birth within the country. Calvin's Case, 7 Rep. 1, 18b;
Cockburn on Nationality, 7; Dicey Conflict of Laws, 177; Inglis v.
Sailors' Snug Harbor, 3 Pet. 99, 155; 2 Kent Com. 39, 42.

The principles upon which each of those exceptions rests were long ago
distinctly stated by this court.

[683] In United States v. Rice, (1819) 4 Wheat. 246, goods imported into
Castine, in the State of Maine, while it was in the exclusive possession
of the British authorities during the last war with England, were held
not to be subject to duties under the revenue laws of the United States,
because, as was said by Mr. Justice Story in delivering judgment: "By
the conquest and military occupation of Castine, the enemy acquired that
firm possession which enabled him to exercise the fullest rights of
sovereignty over that place. The sovereignty of the United States over
the territory was, of course, suspended, and the laws of the United
States could no longer be rightfully enforced there, or be obligatory
upon the inhabitants who remained and submitted t the conquerors. By the
surrender the inhabitants passed under a temporary allegiance to the
British Government, and were bound by such laws, and such only, as it
chose to recognize and impose. From the nature of the case, no other
laws could be obligatory upon them, for, where there is no protection or
allegiance or sovereignty, there can be no claim to obedience." 4 Wheat.
254.

In the great case of The Exchange, (1812) 7 Cranch, 116, the grounds
upon which foreign ministers are, and other aliens are not, exempt from
the jurisdiction of this country, were set forth by Chief Justice
Marshall in a clear and powerful train of reasoning, of which it will be
sufficient, for our purpose, to give little more than the outlines. The
opinion did not touch upon the anomalous case of the Indian tribes, the
true relation of which to the United States was not directly brought
before this court until some years afterwards in Cherokee Nation v.
Georgia, (1831) 5 Pet. 1; nor upon the case of a suspension of the
sovereignty of the United States over part of their territory by reason
of a hostile occupation, such as was also afterwards presented in United
States v. Rice, above cited. But in all other respects it covered the
whole question of what persons within the territory of the United States
are subject to the jurisdiction thereof.

The Chief Justice first laid down the general principle: "The
jurisdiction of the nation within its own territory is [684] necessarily
exclusive and absolute. It is susceptible of no limitation not imposed
by itself. Any restriction upon it, deriving validity from an external
source, would imply a diminution of its sovereignty to the extent of the
restriction, and an investment of that sovereignty to the same extent in
the power which could impose such restriction. All exceptions,
therefore, to the full and complete power of a nation within its own
territories, must be traced up to the consent of the nation itself. They
can flow from no other legitimate source. This consent may be either
express or implied. In the latter case, it is less determinate, exposed
more to the uncertainties of construction; but, if understood, not less
obligatory." 7 Cranch, 136.

He then stated, and supported by argument and illustration, the
propositions, that "this full and absolute territorial jurisdiction,
being alike the attribute of every sovereign, and being incapable of
conferring extra-territorial power," has "given rise to a class of cases
in which every sovereign is understood to waive the exercise of a part
of that complete exclusive territorial jurisdiction, which has been
stated to be the attribute of every nation"--the first of which is the
exemption from arrest or detention of the person of a foreign sovereign
entering its territory with its license, because "a foreign sovereign is
not understood as intending to subject himself to a jurisdiction
incompatible with his dignity and the dignity of his nation;" "a second
case, standing on the same principles with the first, is the immunity
which all civilized nations allow to foreign ministers;" "a third case,
in which a sovereign is understood to cede a portion of his territorial
jurisdiction, is where he allows the troops of a foreign prince to pass
through his dominions;" and, in conclusion, that "a public armed ship,
in the service of a foreign sovereign, with whom the Government of the
United States is at peace, and having entered an American port open for
her reception, on the terms on which ships of war are generally
permitted to enter the ports of a friendly power, must be considered as
having come into the American territory, under an implied promise, that
while necessarily within it, and demeaning herself in a friendly [685]
manner, she should be exempt from the jurisdiction of the country." 7
Cranch, 137-139, 147.

As to the immunity of a foreign minister, he said: "Whatever may be the
principle on which this immunity is established, whether we consider him
as in the place of the sovereign he represents; or by a political
fiction suppose him to be extra-territorial, and therefore, in point of
law, not within the jurisdiction of the sovereign at whose court he
resides; still the immunity itself is granted by the governing power of
the nation to which the minister is deputed. This fiction of
exterritoriality could not be erected and supported against the will of
the sovereign of the territory. He is supposed to assent to it." "The
assent of the sovereign to the very important and extensive exemptions
from territorial jurisdiction, which are admitted to attach to foreign
ministers, is implied from the considerations that, without such
exemption, every sovereign would hazard his own dignity by employing a
public minister abroad. His minister would owe temporary and local
allegiance to a foreign prince, and would be less competent to the
objects of his mission. A sovereign committing the interests of his
nation with a foreign power, to the care of a person whom he has
selected for that purpose, cannot intend to subject his minister in any
degree to that power; and, therefore, a consent to receive him, implies
a consent that he shall possess those privileges which his principal
intended he should retain--privileges which are essential to the dignity
of his sovereign, and to the duties he is bound to perform." 7 Cranch,
138, 139.

The reasons for not allowing to other aliens exemption "from the
jurisdiction of the country in which they are found" were stated as
follows: "When private individuals of one nation spread themselves
through another as business or caprice may direct, mingling
indiscriminately with the inhabitants of that other, or when merchant
vessels enter for the purposes of trade, it would be obviously
inconvenient and dangerous to society, and would subject the laws to
continual infraction, and the government to degradation, if such
individuals or merchants did not owe temporary and local allegiance, and
were [686] not amenable to the jurisdiction of the country. Nor can the
foreign sovereign have any motive for wishing such exemption. His
subjects thus passing into foreign countries are not employed by him,
nor are they engaged in national pursuits. Consequently there are
powerful motives for not exempting persons of this description from the
jurisdiction of the country in which they are found, and no one motive
for requiring it. The implied license, therefore, under which they
enter, can never be construed to grant such exemption." 7 Cranch, 144.

In short, the judgment in the case of The Exchange declared, as
incontrovertible principles, that the jurisdiction of every nation
within its own territory is exclusive and absolute, and is susceptible
of no limitation not imposed by the nation itself; that all exceptions
to its full and absolute territorial jurisdiction must be traced up to
its own consent, express or implied; that upon its consent to cede, or
to waive the exercise of, a part of its territorial jurisdiction, rest
the exemptions from that jurisdiction of foreign sovereigns or their
armies entering its territory with its permission, and of their foreign
ministers and public ships of war; and that the implied license, under
which private individuals of another nation enter the territory and
mingle indiscriminately with its inhabitants, for purposes of business
or pleasure, can never be construed to grant to them an exemption from
the jurisdiction of the country in which they are found. See also
Carlisle v. United States, (1872) 16 Wall. 147, 155; Radich v. Hutchins,
(1877) 95 U.S. 210; Wildenhus's Case, (1887) 120 U.S. 1; Chae Chan Ping
v. United States, (1889) 130 U.S. 581, 603, 604.

From the first organization of the National Government under the
Constitution, the naturalization acts of the United States, in providing
for the admission of aliens to citizenship by judicial proceedings,
uniformly required every applicant to have resided for a certain time
"within the limits and under the jurisdiction of the United States;" and
thus applied the words "under the jurisdiction of the United States" to
aliens residing here before they had taken an oath to support the
Constitution of the United States, or had renounced allegiance [687] to
a foreign government. Acts of March 26, 1790, c. 3; January 29, 1795, c.
20, Section 1; June 18, 1798, c. 54, Sections 1, 6; 1 Stat. 103, 414,
566, 568; April 14, 1802, c. 28, Section 1; 2 Stat. 153; March 22, 1816,
c. 32, Section 1; 3 Stat. 258; May 24, 1828, c. 116, Section 2; 4 Stat.
310; Rev. Stat. Section 2165. And, from 1795, the provisions of those
acts, which granted citizenship to foreign-born children of American
parents, described such children as "born out of the limits and
jurisdiction of the United States." Acts of January 29, 1795, c. 20,
Section 3; 1 Stat. 415; April 14, 1802, c. 28 Section 4; 2 Stat. 155;
February 10, 1855, c. 71; 10 Stat. 604; Rev. Stat. Sections 1993, 2172.
Thus Congress, when dealing with the question of citizenship in that
aspect, treated aliens residing in this country as "under the
jurisdiction of the United States," and American parents residing abroad
as "out of the jurisdiction of the United States."

The words "in the United States, and subject to the jurisdiction
thereof," in the first sentence of the Fourteenth Amendment of the
Constitution, must be presumed to have been understood and intended by
the Congress which proposed the Amendment, and by legislatures which
adopted it, in the same sense in which the like words had been used by
Chief Justice Marshall in the well known case of The Exchange; and as
the equivalent of the words "within the limits and under the
jurisdiction of the United States," and the converse of the words, "out
of the limits and jurisdiction of the United States," as habitually used
in the naturalization acts. This presumption is confirmed by the use of
the word "jurisdiction" in the last clause of the same section of the
Fourteenth Amendment, which forbids any State to "deny to any person
within its jurisdiction the equal protection of the laws." It is
impossible to construe the words "subject to the jurisdiction thereof,"
in the opening sentence, as less comprehensive than the words "within
its jurisdiction," in the concluding sentence of the same section; or to
hold that persons "within the jurisdiction" of one of the States of the
Union are not "subject to the jurisdiction of the United States."

These considerations confirm the view, already expressed in this
opinion, that the opening sentence of the Fourteenth [688] Amendment is
throughout affirmative and declaratory, intended to allay doubts and to
settle controversies which had arisen, and not to impose any new
restrictions upon citizenship.

By the Civil Rights Act of 1866, "all persons born in the United States,
and not subject to any foreign power, excluding Indians not taxed," were
declared to be citizens of the United States. In the light of the law as
previously established, and of the history of the times, it can hardly
be doubted that the words of the act, "not subject to any foreign
power," were not intended to exclude any children born in this country
from the citizenship which would theretofore have been their birthright;
or, for instance, for the first time in our history, to deny the right
of citizenship to native-born children of foreign white parents not in
the diplomatic service of their own country, nor in hostile occupation
of part of our territory. But any possible doubt in this regard was
removed when the negative words of the Civil Rights Act, "not subject to
any foreign power," gave way, in the Fourteenth Amendment of the
Constitution, to the affirmative words, "subject to the jurisdiction of
the United States."

This sentence of the Fourteenth Amendment is declaratory of existing
rights, and affirmative of existing law, as to each of the
qualifications therein expressed--"born in the United States,"
"naturalized in the United States," and "subject to the jurisdiction
thereof"--in short, as to everything relating to the United States. But
it has not touched the acquisition of citizenship by being born abroad
of American parents; and has left that subject to be regulated, as it
had always been, by Congress, in the exercise of the power conferred by
the Constitution to establish an uniform rule of naturalization.

The effect of the enactments conferring citizenship on foreign-born
children of American parents has been defined, and the fundamental rule
of citizenship by birth within the dominion of the United States, not
withstanding alienage of parents, has been affirmed, in well considered
opinions of the executive departments of the Government, since the
adoption of the Fourteenth Amendment of the Constitution.

[689] In 1869, Attorney General Hoar gave to Mr. Fish, the Secretary of
State, an opinion that children born and domiciled abroad, whose fathers
were native-born citizens of the United States and had at some time
resided therein, were, under the Statute of February 10, 1855, c. 71,
citizens of the United States, and "entitled to all the privileges of
citizenship which it is in the power of the United States Government to
confer. Within the sovereignty and jurisdiction of this nation, they are
undoubtedly entitled to all the privileges of citizens." "But," the
Attorney General added, "while the United States may, by law, fix or
declare the conditions constituting citizens of the country within its
own territorial jurisdiction, and may confer the rights of American
citizens everywhere upon persons who are not rightfully subject to the
authority of any foreign country or government, it is clear that the
United States cannot, by undertaking to confer the rights of citizenship
upon the subjects of a foreign nation, who have not come within our
territory, interfere with the just rights of such nation to the
government and control of its own subjects. If, therefore, by the laws
of the country of their birth, children of American citizens, born in
that country, are subjects of its government, I do not think that it is
competent to the United States, by any legislation, to interfere with
that relation, or, by undertaking to extend to them the rights of
citizens of this country, to interfere with the allegiance which they
may owe to the country of their birth while they continue within its
territory, or to change the relation to other foreign nations which, by
reason of their place of birth, may at any time exist. The rule of
common law I understand to be, that a person `born in a strange country,
under the obedience of a strange prince or country, is an alien' (Co.
Lit. 128b,) and that every person owes allegiance to the country of his
birth." 13 Opinions of Attorneys General, 89-91.

In 1871, Mr. Fish, writing to Mr. Marsh, the American Minister to Italy,
said: "The Fourteenth Amendment to the Constitution declares that ~all
persons born or naturalized in the United States, and subject to the
jurisdiction thereof, are citizens of the United States.' This is simply
an affirmance [690] of the common law of England and of this country, so
far as it asserts the status of citizenship to be fixed by the place of
nativity, irrespective of parentage. The qualification, and subject to
the jurisdiction thereof,' was probably intended to exclude the children
of foreign ministers, and of other persons who many be within our
territory with rights of extraterritoriality." 2 Whart. Int. Dig. p.
394.

In August, 1873, President Grant, in the exercise of the authority
expressly conferred upon the President by art. 2, sect. 2, of the
Constitution, to "require the opinion, in writing, of the principal
officer in each of the executive departments, upon any subject relating
to the duties of their respective offices," required the opinions of the
members of his cabinet upon several questions of allegiance,
naturalization and expatriation. Mr. Fish, in his opinion, which is
entitled to much weight, as well from the circumstances under which it
was rendered, as from its masterly treatment of the subject, said:

"It may also endow with the rights and privileges of its citizenship
persons residing in other countries, so as to entitle them to all rights
of property and of succession within its limits, and also with political
privileges and civil rights to be enjoyed or exercised within the
territory and jurisdiction of the State thus conferring its citizenship.

"But no sovereignty can extend its jurisdiction beyond its own
territorial limits so as to relieve those born under and subject to
another jurisdiction, from their obligations or duties thereto; nor can
the municipal law of one State interfere with the duties or obligations
which its citizens incur, while voluntarily resident in such foreign
State and without the jurisdiction of their own country.

[691] "It is evident from the proviso in the act of 10th February, 1855,
viz., `that the rights of citizenship shall not descend to persons whose
fathers never resided in the United States,' that the law-making power
not only had in view this limit to the efficiency of its own municipal
enactments in foreign jurisdiction; but that it has conferred only a
qualified citizenship upon the children of American fathers born without
the jurisdiction of the United States, and has denied to them, what
pertains to other American citizens, the right of transmitting
citizenship to their children, unless they shall have made themselves
residents of the United States, or, in the language of the Fourteenth
Amendment of the Constitution, have made themselves `subject to the ju
risdiction thereof.'

"The child born of alien parents in the United States is held to be a
citizen thereof, and to be subject to duties with regard to this country
which do not attach to the father.

"The same principle on which such children are held by us to be citizens
of the United States, and to be subject to duties to this country,
applies to the children of American fathers born without the
jurisdiction of the United States, and entitles the country within whose
jurisdiction they are born to claim them as citizens and to subject them
to duties to it.

"Such children are born to a double character: the citizenship of the
father is that of the child, so far as the laws of the country of which
the father is a citizen are concerned, and within the jurisdiction of
that country; but the child, from the circumstances of his birth, may
acquire rights and owes another fealty besides that which attaches to
the father." Opinions of the Executive Departments on Expatriation,
Naturalization and Allegiance, (1873) 17, 18; U.S. Foreign Relations,
1873-74, pp. 1191, 1192.

In 1886, upon the application of a son born in France of an American
citizen, and residing in France, for a passport, Mr. Bayard, the
Secretary of State, as appears by letters from him to the Secretary of
Legation in Paris, and from the latter to the applicant, quoted and
adopted the conclusion of Attorney General Hoar in his opinion above
cited. U.S. Foreign Relations, 1886, p. 303; 2 Calvo Droit Internation,
Section 546.

These opinions go to show that, since the adoption of the Fourteenth
Amendment, the executive branch of the Government, the one charged with
the duty of protecting American citizens abroad against unjust treatment
by other nations, has taken the same view of the act of Congress of
1855, declaring children born abroad of American citizens to be
themselves citizens, which, as mentioned in a former part of this
opinion, the British Foreign Office has taken of similar acts of
Parliament--holding that such statutes cannot, consistently with our own
established rule of citizenship by birth in this country, operate
extra-territorially so far as to relieve any person born and residing in
a foreign country, and subject to its government, from his allegiance to
that country.

In a very recent case, the Supreme Court of New Jersey held that a
person, born in this country of Scotch parents who were domiciled but
had not been naturalized here, was "subject to the jurisdiction of the
United States," within the meaning of the Fourteenth Amendment, and was
"not subject to any foreign power," within the meaning of the Civil
Rights Act of 1866; and, in an opinion delivered by Justice Van Syckel,
with the concurrence of Chief Justice Beasley, said: "The object of the
Fourteenth Amendment, as is well known, was to confer upon the colored
race the right of citizenship. It, however, gave to the colored people
no right superior to that granted to the white race. The ancestors of
all the colored people then in the United States were of foreign birth,
and could not have been naturalized, or in any way have become entitled
to the right of citizenship. The colored people were no more subject to
the jurisdiction of the united States, by reason of their birth here,
than were the white children born in this country of parents who were
not citizens. The same rule must be applied to both races; and unless
the general rule, that when the parents are domiciled here birth
establishes the right of citizenship, is accepted, the Fourteenth
Amendment has failed to accomplish its purpose, and the colored people
are not citizens. The Fourteenth Amendment, by the language, `all
persons born in the United States, and subject to the jurisdiction
thereof,' was intended [693] to bring all races, without distinction of
color, within the rule which prior to that time pertained to the white
race." Benny v. O'Brien, (1895) 29 Vroom (58 N.J. Law), 36, 39, 40.

The foregoing considerations and authorities irresistibly lead us to
these conclusions: The Fourteenth Amendment affirms the ancient and
fundamental rule of citizenship by birth within the territory, in the
allegiance and under the protection of the country, including all
children here born of resident aliens, with the exceptions or
qualifications (as old as the rule itself) of children of foreign
sovereigns or their ministers, or born on foreign public ships, or of
enemies within and during a hostile occupation of part of our territory,
and with the single additional exception of children of members of the
Indian tribes owing direct allegiance to their several tribes. The
Amendment, in clear words and in manifest intent, includes the children
born, within the territory of the United States, of all other persons,
of whatever race or color, domiciled within the United States. Every
citizen or subject of another country, while domiciled here, is within
the allegiance and the protection, and consequently subject to the
jurisdiction, of the United States. His allegiance to the United States
is direct and immediate, and, although but local and temporary,
continuing only so long as he remains within our territory, is yet, in
the words of Lord Coke, in Calvin's Case, 7 Rep. 6a, "strong enough to
make a natural subject, for if he hath issue here, that issue is a
natural-born subject;" and his child, as said by Mr. Binney in his essay
before quotes, "if born in the country, is as much a citizen as the
natural-born child of a citizen, and by operation of the same
principle." It can hardly be denied that an alien is completely subject
to the political jurisdiction of the country in which he resides--seeing
that, as said by Mr. Webster, when Secretary of State, in his Report to
the President on Thrasher's Case in 1851, and since repeated by this
court, "independently of a residence with intention to continue such
residence; independently of any domiciliation; independently of the
taking of any oath of allegiance or of renouncing any former allegiance,
it is well known that, by the public law, an alien, or a stranger [694]
born, for so long a time as he continues within the dominions of a
foreign government, owes obedience to the laws of that government, and
may be punished for treason, or other crimes, as a native-born subject
might be, unless his case is varied by some treaty stipulations." Ex.
Doc. H. R. No. 10, 1st sess. 32d Congress, p. 4; 6 Webster's Works, 526;
United States v. Carlisle, 16 Wall. 147, 155; Calvin's Case, 7 Rep. 61;
Ellesmere on Postnati, 63; 1 Hale P. C. 62; 4 Bl. Com. 74, 92.

To hold that the Fourteenth Amendment of the Constitution excludes from
citizenship the children, born in the United States, of citizens or
subjects of other countries, would be to deny citizenship to thousands
of persons of English, Scotch, Irish, German or other European
parentage, who have always been considered and treated as citizens of
the United States.

VI. Whatever considerations, in the absence of a controlling provision
of the Constitution, might influence the legislative or the executive
branch of the Government to decline to admit persons of the Chinese race
to the status of citizens of the United States, there are none that can
constrain or permit the judiciary to refuse to give full effect to the
peremptory and explicit language of the Fourteenth Amendment, which
declares and ordains that "All persons born or naturalized in the United
States, and subject to the jurisdiction thereof, are citizens of the
United States."

Chinese persons, born out of the United States, remaining subjects of
the Emperor of China, and not having become citizens of the United
States, are entitled to the protection of and owe allegiance to the
United States, so long as they are permitted by the United States to
reside here; and are "subject to the jurisdiction thereof," in the same
sense as all other aliens residing in the United States. Yick Wo v.
Hopkins, (1886) 118 U.S. 356; Law Ow Vew v. United States, (1892) 144
U.S. 47, 61, 62; Fong Yue Ting v. United States, (1893) 149 U.S. 698,
724; Lem Moon Sing v. United States, (1895) 158 U.S. 538, 547; Wong Wing
v. United States, (1896) 163 U.S. 228, 238.

In Yick Wo v. Hopkins the decision was that an ordinance [695] of the
city of San Francisco, regulating a certain business, and which, as
executed by the board of supervisors, made an arbitrary discrimination
between natives of China, still subjects of the Emperor of China, but
domiciled in the United States and all other persons, was contrary to
the Fourteenth Amendment of the Constitution. Mr. Justice Matthews, in
delivering the opinion of the court, said: "The rights of the
petitioners, as affected by the proceedings of which they complain, are
not less, because they are aliens and subjects of the Emperor of China."
"The Fourteenth Amendment to the Constitution is not confined to the
protection of citizens. It says, `Nor shall any State deprive any person
of life, liberty or property, without due process of law; nor deny to
any person within its jurisdiction the equal protection of the laws.'
These provisions are universal in their application, to all persons
within the territorial jurisdiction, without regard to any differences
of race, of color, or of nationality; and the equal protection of the
laws is a pledge of the protection of equal laws. It is accordingly
enacted, by Section 1977 of the Revised Statutes, that `all persons
within the jurisdiction of the United States shall have the same right
in every State and Territory to make and enforce contracts, to sue, be
parties, give evidence, and to the full and equal benefit of all laws
and proceedings for the security of persons and property, as is enjoyed
by white citizens, and shall be subject to like punishment, pains,
penalties, taxes, licenses and exactions of every kind, and to no
other.' The questions we have to consider and decide in these cases,
therefore, are to be treated as involving the rights of every citizen of
the United States, equally with those of the strangers and aliens who
now invoke the jurisdiction of this court." 118 U.S. 368, 369.

The manner in which reference was made, in the passage above quoted, to
Section 1977 of the Revised Statutes, shows that the change of phrase in
that section, reenacting Section 16 of the statute of May 31, 1870, c.
114, 16 Stat. 144, as compared with Section 1 of the Civil Rights Act of
1866--by Substituting, for the words in that act, "of every race and
color," the words, "within the jurisdiction of the united States"--was
not [696] considered as making the section, as it now stands, less
applicable to persons of every race and color and nationality, than it
was in its original form; and is hardy consistent with attributing any
narrower meaning to the words "subject to the jurisdiction thereof" in
the first sentence of the Fourteenth Amendment of the Constitution,
which may itself have been the cause of the change in the phraseology of
that provision of the Civil Rights Act.

The decision in Yick Wo v. Hopkins, indeed, did not directly pass upon
the effect of these words in the Fourteenth Amendment, but turned upon
subsequent provisions of the same section. But, as already observed, it
is impossible to attribute to the words, "subject to the jurisdiction
thereof," that is to say, of the United States, at the beginning, a less
comprehensive meaning than to the words "within its jurisdiction," that
is, of the State, at the end of the same section; or to hold that
persons, who are indisputably "within the jurisdiction" of the State,
are not "subject to the jurisdiction" of the Nation.

It necessarily follows that persons born in China, subjects of the
Emperor of China, but domiciled in the United States, having been
adjudged, in Yick Wo v. Hopkins, to be within the jurisdiction of the
State, within the meaning of the concluding sentence, must be held to be
subject to the jurisdiction of the United States, within the meaning of
the first sentence of this section of the Constitution; and their
children, "born in the United States," cannot be less "subject to the
jurisdiction thereof."

Accordingly, in Quock Ting v. United States, (1891) 140 U.S. 417, which,
like the case at bar, was a writ of habeas corpus to test the lawfulness
of the exclusion of a Chinese person who alleged that he was a citizen
of the United States by birth, it was assumed on all hands that a person
of the Chinese race, born in the United States, was a citizen of the
United States. The decision turned upon the failure of the petitioner to
prove that he was born in this country; and the question at issue was,
as stated in the opinion of the majority of the court, delivered by Mr.
Justice Field, "whether the evidence was sufficient to show that the
petitioner was a citizen of the United States," [697] or, as stated by
Mr. Justice Brewer in his dissenting opinion, "whether the petitioner
was born in this country or not." 140 U.S. 419, 423.

In State v. Ah Chew, (1881) 16 Nevada, 50, 58, the Supreme Court of
Nevada said: "The Amendments did not confer the right of citizenship
upon the Mongolian race, except such as are born within the United
States." In the courts of the United States in the Ninth Circuit, it has
been uniformly held, in a series of opinions delivered by Mr. Justice
Field, Judge Sawyer, Judge Deady, Judge Hanford and Judge Morrow, that a
child born in the United States of Chinese parents, subject of the
Emperor of China, is a native-born citizen of the United States. In re
Look Tin Sing, (1884) 10 Sawyer, 353; Ex parte Chin King, (1888) 13
Sawyer, 333; In re Yung Sing Hee, (1888) 13 Sawyer, 482; In re Wy Shing,
(1888) 13 Sawyer, 530; Gee Fook Sing v. United States, (1892) 7 U.S. App
. 27; In re Wong Kim Ark, (1896) 71 Fed. Rep. 382. And we are not aware
of any judicial decision to the contrary.

During the debates in the Senate in January and February, 1866, upon the
Civil Rights Bill, Mr. Trumbull, the chairman of the committee which
reported the bill, moved to amend the first sentence thereof so as to
read, "All persons born in the United States, and not subject to any
foreign power, are hereby declared to be citizens of the United States,
without distinction of color." Mr. Cowan, of Pennsylvania, asked,
"Whether it will not have the effect of naturalizing the children of
Chinese and Gypsies, born in this country?" Mr. Trumbull answered,
"Undoubtedly;" and asked, "Is not the child born in this country of
German parents a citizen?" Mr. Cowan replied, "The children of German
parents are citizens; but Germans are not Chinese." Mr. Trumbull
rejoined: "The law makes no such distinction; and the child of an
Asiatic is just as much a citizen as the child of a European." Mr.
Reverdy Johnson suggested that the words, "without distinction of
color," should be omitted as unnecessary; and said: "The amendment, as
it stands, is that all persons born in the United States, and not
subject to a foreign power, shall, by virtue of birth, be citizens. To
that I am willing to consent; [698] and that comprehends all persons,
without any reference to race or color, who may be so born." And Mr.
Trumbull agreed that striking out those words would make no difference
in the meaning, but thought it better that they should be retained, to
remove all possible doubt. Congressional Globe, 39th Congress, 1st sess.
pt. 1, pp. 498, 573, 574.

The Fourteenth Amendment of the Constitution, as originally framed by
the House of Representatives, lacked the opening sentence. When it came
before the Senate in May, 1866, Mr. Howard, of Michigan, moved to amend
by prefixing the sentence in its present form, (less the words "or
naturalized,") and reading, "All persons born in the United States, and
subject to the jurisdiction thereof, are citizens of the United States
and of the State wherein they reside." Mr. Cowan objected, upon the
ground that the Mongolian race ought to be excluded; and said: "Is the
child of the Chinese immigrant in California a citizen?" "I do not know
how my honorable friend from California looks upon Chinese, but I do
know how some of his fellow-citizens regard them. I have no doubt that
now they are useful, and I have no doubt that within proper restraints,
allowing that State and the other Pacific States to manage them as they
may see fit, they may be useful; but I would not tie their hands by the
Constitution of the United States so as to prevent them hereafter from
dealing with them as in their wisdom they see fit." Mr. Conness, of
California, replied: "The proposition before us relates simply, in that
respect, to the children begotten of Chinese parents in California, and
it is proposed to declare that they shall be citizens. We have declared
that by law; now it is proposed to incorporate the same provision in the
fundamental instrument of the Nation. I am in favor of doing so. I voted
for the proposition to declare that the children of all parentage
whatever, born in California, should be regarded and treated as citizens
of the United States entitled to equal civil rights with other citizens
of the United States." "We are entirely ready to accept the provision
proposed in this Constitutional Amendment, that the children born here
of Mongolian parents shall be declared by the Constitution of the [699]
United States to be entitled to civil rights and to equal protection
before the law with others." Congressional Globe, 39th Congress, 1st se
ss. pt. 4, pp. 2890-2892. It does not appear to have been suggested, in
either House of Congress, that children born in the United States of
Chinese parents would not come within the terms and effect of the
leading sentence of the Fourteenth Amendment.

Doubtless, the intention of the Congress which framed and of the States
which adopted this Amendment of the Constitution must be sought in the
words of the Amendment; and the debates in Congress are not admissible
as evidence to control the meaning of those words. But the statements
above quoted are valuable as contemporaneous opinions of jurists and
statesmen upon the legal meaning of the words themselves; and are, at
the least, interesting as showing that the application of the Amendment
to the Chinese race was considered and not overlooked.

The acts of Congress, known as the Chinese Exclusion Acts, the earliest
of which was passed some fourteen years after the adoption of the
Constitutional Amendment, cannot control its meaning, or impair its
effect, but must be construed and executed in subordination to its
provisions. And the right of the United States, as exercised by and
under those afts, to exclude or to expel from the country persons of the
Chinese race, born in China, and continuing to be subjects of the
Emperor of China, though having acquired a commercial domicil in the
United States, has been upheld by this court, for reasons applicable to
all aliens alike, and inapplicable to citizens, of whatever race or
color. Chae Chan Ping v. United States, 130 U.S. 581; Nishimura Ekiu v.
United States, 142 U.S. 651; Fong Yue Ting v. United States, 149 U.S.
698; Lem Moon Sing v. United States, 158 U.S. 538; Wong Wing v. United
States, 163 U.S. 228.

In Fong Yue Ting v. United States, the right of the United States to
expel such Chinese persons was placed upon the grounds, that the right
to exclude or to expel all aliens, or any class of aliens, absolutely or
upon certain conditions, is an inherent and inalienable right of every
sovereign and independent [700] nation, essential to its safety, its
independence and its welfare; that the power to exclude or to expel
aliens, being a power affecting international relations, is vested in
the political departments of the Government, and is to be regulated by
treaty or by act of Congress, and to be executed by the executive
authority according to the regulations so established, except so far as
the judicial department has been authorized by treaty or by statute, or
is required by the paramount law of the Constitution, to intervene;
that the power to exclude and the power to expel aliens rest upon one
foundation, are derived from one source, are supported by the same
reasons, and are in truth but parts of one and the same power; and,
therefore, that the power of Congress to expel, like the power to
exclude aliens, or any specified class of aliens, from the country, may
be exercised entirely through executive officers; or Congress may call
in the aid of the judiciary to ascertain any contested facts on which an
alien's right to be in the country has been made by Congress to depend.
149 U.S. 711, 713, 714.

In Lem Moon Sing v. United States, the same principles were reaffirmed,
and were applied to a Chinese person, born in China, who had acquired a
commercial domicil in the United States, and who, having voluntarily
left the country on a temporary visit to China, and with the intention
of returning to and continuing his residence in this country, claimed
the right under a statute or treaty to reenter it; and the distinction
between the right of an alien to the protection of the Constitution and
laws of the United States for his person and property while within the
jurisdiction thereof, and his claim of a right to reenter the United
states after a visit to his native land, was expressed by the court as
follows: "He is none the less an alien, because of his having a
commercial domicil in this country. While he lawfully remains here, he
is entitled to the benefit of the guaranties of life, liberty and
property, secured by the Constitution to all persons, of whatever race,
within the jurisdiction of the United States. His personal rights when
he is in this country, and such of his property as is here during his
absence, are as fully protected by the supreme law of the land, as if he
were a native or [701] naturalized citizen of the United States. But
when he has voluntarily gone from the country, and is beyond its
jurisdiction, being an alien, he cannot reenter the United States in
violation of the will of the Government as expressed in enactments of
the law-making power." 158 U.S. 547, 548.

It is true that Chinese persons born in China cannot be naturalized,
like other aliens, by proceedings under the naturalization laws. But
this is for want of any statute or treaty authorizing or permitting such
naturalization, as will appear by tracing the history of the statutes,
treaties and decisions upon that subject--always bearing in mind that
statutes enacted by Congress, as well as treaties made by the President
and Senate, must yield to the paramount and supreme law of the
Constitution.

The power, granted to Congress by the Constitution, "to establish an
uniform rule of naturalization," was long ago adjudged by this court to
be vested exclusively in Congress. Chirac v. Chirac, (1817) 2 Wheat.
259. For many years after the establishment of the original
Constitution, and until two years after the adoption of the Fourteenth
Amendment, Congress never authorized the naturalization of any but "free
white person." Acts of March 26, 1790, c. 3, and January 29, 1795, c.
20; 1 Stat. 103, 414; April 14, 1802, c. 28, and March 26, 1804, c. 47;
2 Stat. 153, 292; March 22, 1816, c. 32; 3 Stat. 258; May 26, 1824, c.
186, and May 24, 1828, c. 116; 4 Stat. 69, 310. By the treaty between
the United States and China, made July 28, 1868, and promulgated
February 5, 1870, it was provided that "nothing herein contained shall
be held to confer naturalization upon citizens of the United States in
China, nor upon the subjects of China in the United States." 16 Stat.
740. By the act of July 14, 1870, c. 254, Section 7, for the first time,
the naturalization laws were "extended to aliens of African nativity and
to persons of African descent." 16 Stat. 256. This extension, as
embodied in the Revised Statutes, took the form of providing that those
laws should "apply to aliens [being free white persons, and to aliens]
of African nativity and to persons of African descent;" and it was
amended by the act of February [702] 18, 1875, c. 80, by inserting the
words above printed in brackets. Rev. Stat. (2d ed.) Section 2169; 18
Stat. 318. Those statutes were held, by the Circuit Court of the United
States in California, not to embrace the Chinese aliens. In re Ah Yup,
(1878) 5 Sawyer, 155. And by the act of May 6, 1882, c. 126, Section 14,
it was expressly enacted that "hereafter no state court or court of the
United States shall admit Chinese to citizenship." 22 Stat. 61.

In Fong Yue Ting v. United States, (1893) above cited, this court said:
"Chinese persons not born in this country have never been recognized as
citizens of the United States, nor authorized to become such under the
naturalization laws." 149 U.S. 716.

The Convention between the United States and China of 1894 provided that
"Chinese laborers or Chinese of any other class, either permanently or
temporarily residing in the United States, shall have for the protection
of their persons and property all rights that are given by the laws of
the United States to citizens of the most favored nation, excepting the
right to become naturalized citizens." 28 Stat. 1211. And it has since
been decided, by the same judge who held this appellee to be a citizen
of the United States by virtue of his birth therein, that a native of
China of the Mongolian race could not be admitted to citizenship under
the naturalization laws. In re Gee Hop, (1895) 71 Fed. Rap. 274.

The Fourteenth Amendment of the Constitution, in the declaration that
"all persons born or naturalized in the United States, and subject to
the jurisdiction thereof, are citizens of the United States and of the
State wherein they reside," contemplates two sources of citizenship, and
two only: birth and naturalization. Citizenship by naturalization can
only be acquired by naturalization under the authority and in the forms
of law. But citizenship by birth is established by the mere fact of
birth under the circumstances defined in the Constitution. Every person
born in the United States, and subject to the jurisdiction thereof,
becomes at once a citizen of the United States, and needs no
naturalization. A person born out of the jurisdiction of the United
States can only become a citizen by being naturalized, either by treaty,
as in the case [703] of the annexation of foreign territory; or by
authority of Congress, exercised either by declaring certain classes of
persons to be citizens, as in the enactments conferring citizenship upon
foreign-born children of citizens, or by enabling foreigners
individually to become citizens by proceedings in the judicial
tribunals, as in the ordinary provisions of the naturalization acts.

The power of naturalization, vested in Congress by the Constitution, is
a power to confer citizenship, not a power to take it away. "A
naturalized citizen," said Chief Justice Marshall, "becomes a member of
the society, possessing all the rights of a native citizen, and
standing, in the view of the Constitution, on the footing of a native.
The Constitution does not authorize Congress to enlarge or abridge those
rights. The simple power of the National Legislature is to prescribe a
uniform rule of naturalization, and the exercise of this power exhausts
it, so far as respects the individual. The Constitution then takes him
up, and, among other rights, extends to him the capacity of suing in the
courts of the United States, precisely under the same circumstances u
nder which a native might sue." Osborn v. United States Bank, 9 Wheat.
738, 827. Congress having no power to abridge the rights conferred by
the Constitution upon those who have become naturalized citizens by
virtue of acts of Congress, a fortiori no act or omission of Congress,
as to providing for the naturalization of parents or children of a
particular race, can affect citizenship acquired as a birthright, by
virtue of the Constitution itself, without any aid of legislation. The
Fourteenth Amendment, while it leaves the power, where it was before, in
Congress, to regulate naturalization, has conferred no authority upon
Congress to restrict the effect of birth, declared by the Constitution
to constitute a sufficient and complete right to citizenship.

No one doubts that the Amendment, as soon as it was promulgated, applied
to persons of African descent born in the United States, wherever the
birthplace of their parents might have been; and yet, for two years
afterwards, there was no statute authorizing persons of that race to be
naturalized. If the omission or the refusal of Congress to permit
certain [704] classes of persons to be made citizens by naturalization
could be allowed the effect of correspondingly restricting the classes
of persons who should become citizens by birth, it would be in the power
of Congress, at any time, by striking negroes out of the naturalization
laws, and limiting those laws, as they were formerly limited, to white
persons only, to defeat the main purpose of the Constitutional A
mendment.

The fact, therefore, that acts of Congress or treaties have not
permitted Chinese persons born out of this country to become citizens by
naturalization, cannot exclude Chinese persons born in this country from
the operation of the broad and clear words of the Constitution, "All
persons born in the United States, and subject to the jurisdiction
thereof, are citizens of the United States."

VII. Upon the facts agreed in this case, the American citizenship which
Wong Kim Ark acquired by birth within the United States has not been
lost or taken away by anything happening since his birth. No doubt he
might himself, after coming of age, renounce this citizenship, and
become a citizen of the country of his parents, or of any other country;
for by our law, as solemnly declared by Congress, "the right of
expatriation is a natural and inherent right of all people," and "any
declaration, instruction, opinion, order or direction of any officer of
the United States, which denies, restricts, impairs or questions the
right of expatriation, is declared inconsistent with the fundamental
principles of the Republic." Rev. Stat. Section 19999, reenacting act of
July 27, 1868, c. 249, Section 1; 15 Stat. 223, 224. Whether any act of
himself, or of his parents, during his minority, could have the same
effect, is at least doubtful. But it would be out of place to pursue
that inquiry; inasmuch as it is expressly agreed that this residence has
always been in the United States, and not elsewhere; that each of his
temporary visits to China, the one for some months when he was about
seventeen years old, and the other for something like a year about the
time of his coming of age, was made with the intention of returning, and
was followed by his actual return, to the United States; and "that said
Wong Kim Ark has not, either by himself or his parents acting [705] for
him, ever renounced his allegiance to the United States, and that he has
never done or committed any act or thing to exclude him therefrom."

The evident intention, and the necessary effect, of the submission of
this case to the decision of the court upon the facts agreed by the
parties, were to present for determination the single question, stated
at the beginning of this opinion, namely, whether a child born in the
United States, of parents of Chinese descent, who, at the time of his
birth, are subjects of the Emperor of China, but have a permanent
domicil and residence in the United States, and are there carrying on
business, and are not employed in any diplomatic or official capacity
under the Emperor of China, becomes at the time of his birth a citizen
of the United States. For the reasons above stated, this court is of
opinion that the question must be answered in the affirmative.

Order affirmed.

_______________ *1* Acts of May 6, 1882, c. 126, 22 Stat. 58; July 5,
1884, c. 220, 23 Stat. 115; September 13, 1888, c. 1015, and October 1,
1888, c. 1064, 25 Stat. 476, 504; May 5, 1892, c. 60, 27 Stat. 25;
August 18, 1894, c. 301, 28 Stat. 390.

 

---

home | about cet | about Loni Ding | cet productions
resources | mailing list | order | site credits | contact us

ancestors | guides | documents | discover ancestors
reviews & awards | series credits | about documemoir | interview

Copyright 1998-2009. Center for Educational Telecommunications, Inc. All Rights Reserved.