U.S. Supreme Court United States v. Wong Kim Ark, 169
U.S. 649 (1898) United States v. Wong Kim
Ark No. 18 Argued March 5, 8,
1897 Decided March 28,
1898 169
U.S. 649 APPEAL FROM THE DISTRICT COURT OF
THE UNITED STATES FOR THE NORTHERN DISTRICT OF
CALIFORNIA Syllabus 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 Amendment of the
Constitution,

															"All person 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."

															This was a writ of habeas corpus issued October 2, 1895, by the
District Court of the United States for the Northern District of
California to the collector of customs at the port of San
Francisco, in behalf of Wong Kim Ark, who alleged that he was a
citizen of the United States, of more than twenty-one years of age,
and was born at San Francisco in 1873 of parents of Chinese descent
and subjects of the Emperor of China, but domiciled residents at
San Francisco, and that, on his return to the United States on the
steamship Coptic in August, 1895, from a temporary visit to China,
he applied to said collector of customs for permission to land, and
was by the collector refused such permission, and was restrained of
his liberty by the collector, and by the general manager of the
steamship company acting under his direction, in violation of the
Constitution and laws of the United States, not by virtue of any
judicial order or proceeding, but solely upon the pretence that he
was not a citizen of the United States.

															At the hearing, the District Attorney of the United States was
permitted to intervene in behalf of the United States in opposition
to the writ, and stated the grounds of his intervention in writing
as follows:

															"That, as he is informed and believes, the said person in Page 169 U. S. 650 whose behalf said application was made is not entitled to land
in the United States, or to be or remain therein, as is alleged in
said application, or otherwise."

															"Because the said Wong Kim Ark, although born in the city and
county of San Francisco, State of California, United States of
America, is not, under the laws of the State of California and of
the United States, a citizen thereof, the mother and father of the
said Wong Kim Ark being Chinese persons and subjects of the Emperor
of China, and the said Wong Kim Ark being also a Chinese person and
a subject of the Emperor of China."

															"Because the said Wong Kim Ark has been at all times, by reason
of his race, language, color and dress, a Chinese person, and now
is, and for some time last past has been, a laborer by
occupation."

															"That the said Wong Kim Ark is not entitled to land in the
United States, or to be or remain therein, because he does not
belong to any of the privileged classes enumerated in any of the
acts of Congress, known as the Chinese Exclusion Acts, * which
would exempt him from the class or classes which are especially
excluded from the United States by the provisions of the said
acts."

															"Wherefore the said United States Attorney asks that a judgment
and order of this honorable court be made and entered in accordance
with the allegations herein contained, and that the said Wong Kim
Ark be detained on board of said vessel until released as provided
by law, or otherwise to be returned to the country from whence he
came, and that such further order be made as to the court may seem
proper and legal in the premises."

															The case was submitted to the decision of the court upon the
following facts agreed by the parties:

															"That the said Wong Kim Ark was born in the year 1873, at No.
751 Sacramento Street, in the city and county of San Francisco,
State of California, United States of America, and Page 169 U. S. 651 that his mother and father were persons of Chinese descent and
subjects of the Emperor of China, and that said Wong Kim Ark was
and is a laborer."

															"That, at the time of his said birth, his mother and father were
domiciled residents of the United States, and had established and
enjoyed a permanent domicil and residence therein at said city and
county of San Francisco, State aforesaid."

															"That said mother and father of said Wong Kim Ark continued to
reside and remain in the United States until the year 1890, when
they departed for China."

															"That during all the time of their said residence in the United
States as domiciled residents therein, the said mother and father
of said Wong Kim Ark were engaged in the prosecution of business,
and were never engaged in any diplomatic or official capacity under
the Emperor of China."

															"That ever since the birth of said Wong Kim Ark, at the time and
place hereinbefore stated and stipulated, he has had but one
residence, to-wit, a residence in said State of California, in the
United States of America, and that he has never changed or lost
said residence or gained or acquired another residence, and there
resided claiming to be a citizen of the United States."

															"That, in the year 1890 the said Wong Kim Ark departed for China
upon a temporary visit and with the intention of returning to the
United States, and did return thereto on July 26, 1890, on the
steamship Gaelic, and was permitted to enter the United
States by the collector of customs upon the sole ground that he was
a native-born citizen of the United States."

															"That after his said return, the said Wong Kim Ark remained in
the United States, claiming to be a citizen thereof, until the year
1894, when he again departed for China upon a temporary visit, and
with the intention of returning to the United States, and did
return thereto in the month of August, 1895, and applied to the
collector of customs to be permitted to land, and that such
application was denied upon the sole ground that said Wong in Ark
was not a citizen of the United States. " Page 169 U. S. 652 "That said Wong Kim Ark has not, either by himself or his
parents acting 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 court ordered Wong Kim Ark to be discharged, upon the ground
that he was a citizen of the United States. 1 Fed.Rep. 382. The
United States appealed to this court, and the appellee was admitted
to bail pending the appeal.

															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 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
domicil and 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 Page 169 U. S. 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.

															It is conceded that, if he is 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 Amendment 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
lawmaking power of which the act in question is an amendment, but
also to the condition and to the history Page 169 U. S. 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 of 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 insofar 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 the 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 , 114 U. S. 422 ; Boyd v. United States, 116 U. S. 616 , 116 U. S. 624 , 116 U. S. 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. Kent Com. 336;
Bradley, J., in Moore v. United States, 91 U. S.
270 , 91 U. S.
274 . Page 169 U. S. 655 In Minor v. Happersett, Chief Justice Waite, when
construing, 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. 88 U. S.
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. 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 Page 169 U. S. 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, 4 b -6 a, 18 a, 18 b; 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. 8 a, 128 b, Lord Hale, in Hargrave's Law
Tracts, 210, an 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,
p. 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 his 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 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 intestacy, Page 169 U. S. 657 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, 460. 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 to the 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 Page 169 U. S. 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 man's
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 Page 169 U. S. 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." 6 U. S. 2 Cranch 64, 6 U. S. 119 .

															In Inglis v. Sailors' Snug
Harbor (1833), 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, are
natural-born British subjects."

															3 Pet. 28 U. S. 120 .
Mr. Justice Johnson said: "He was entitled to inherit as a citizen
born of the State of New York." 3 Pet. 28 U. S. 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 secondly, birth within
the protection and obedience, or, in other words, within the
allegiance 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 Page 169 U. S. 660 subjects of the prince whom he represents, although born under
the actual protection and in the dominions of a foreign
prince."

															3 Pet. 28 U. S. 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. 28 U. S.
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. 28 U. S.
164 .

															In 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 cast 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. 28 U. S. 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 treaty, there was any principle of international law which could
defeat the operation of the established rule of citizenship by
birth within the United States; for he referred (p. 28 U. S. 245 )
to the contemporaneous opinions in Inglis v. Sailors' Snug
Harbor, Page 169 U. S. 661 above cited, in which this rule had been distinctly recognized,
and in which he had said (p. 28 U. S. 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 citizens and subjects of that
country." Story, Conflict of Laws, § 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 is Majesty's realms and
dominions," as fully and effectually, as if such parents or
ancestors "had been naturalized or natural-born subject or subjects
within the King's dominions." 7 Statutes of the Realm, 90. 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 persons born
"within any of the King's realms or dominions," 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 Page 169 U. S. 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. 22 U. S.
356 .

															Again, in Levy v.
McCartee (1832), 6 Pet. 102, 31 U. S. 112 , 31 U. S. 113 , 31 U. S. 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.
8 a, that,

															"if an alien cometh into England and hath issue two sons, these
two sons are indigenae, 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.
Somervlle , 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
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. 60 U. S. 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 Page 169 U. S. 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 Abbott (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.'" Garder 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 as 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. 1, 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
Gaston, 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 and sovereign Page 169 U. S. 664 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 the people, and he who
before as 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.
Clark, (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, 394, 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 the 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 Page 169 U. S. 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 o 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 the 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 a citizen as the natural born child of a
citizen, and by operation of the same principle. " Page 169 U. S. 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 Trait des Personnes, pt.
1, tit. 2, sect. 1, nos. 43, 45; Walsh-Serrant v.
Walsh-Serrant, (1802) 3 Journal du Palais, 384; S.C., S. Merlin, Jurisprudence, (5th ed.) Domicile, § 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.) § 542; Cockburn on Nationality, 13, 14; Hall's International
Law, (4th ed.) § 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. Page 169 U. S. 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 vielle regle francaise, ou plutot meme de la vielle regle
europienne -- 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 o 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 41. 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 as 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. Page 169 U. S. 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 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 5 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 Page 169 U. S. 669 in the Parliament"

															of 17 Edw. III, "and as 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' Case, 2
Howell's State Trials, 585; Westlake and Pollock, arguendo, in De Geer v. Stone, 22 Ch.D. 243, 247;
2 Kent Com. 50, 53; Lynch 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,
from 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 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,
184 a, stating that, at Trinity Term, 7 Edw. III, Rot. 2
B.R., it was adjudged that children of subjects born Page 169 U. S. 670 beyond the sea in the service of the King were inheritable --
which has been shown, by a search of the roll in the 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 5 Edw. III recites the existence of doubts as to
the right of foreign-born children to inherit in 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.
17 a, 18 a; Co.Lit. 8 a, and Hargrave's
note 36; 1 Bl.Com. 33; Barrington on Statutes, (5th ed.) 268; Lord
Kenyon, in Doe v. Jones, 4 T.R. 300, 308; I: ord
Chancellor Cranworth, in Shedden v. Patrick, 1 Macq. 535,
611; Cockburn on Nationality, 7, 9; De Greer v. Stone, 2
Ch.D. 243, 252; Dicey Conflict of Laws, 17, 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 Page 169 U. S. 671 statute of 29 Car. II, (1677) c. 6, § 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, 1660, "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, § 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 of natural-born
subjects, but not to the issue of such grandchildren; or, as put by
Mr. Dicey, "British nationality does not pass by descent or
inheritance beyond the second generation." See DeGeer 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 Page 169 U. S. 672 who are born out of its on 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 the 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, 1873-1874, pp. 1237, 1837. 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, 1854, c. 71; 10 Stat. 604; Rev.Stat. §§ 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 Page 169 U. S. 673 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
now are, or have been citizens of the United States shall, though
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, § 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 Page 169 U. S. 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. § 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 Page 169 U. S. 675 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 forefront 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, § 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; 1 Stat. 708.

															The first section of the Fourteenth Amendment of the
Constitution Page 169 U. S. 676 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 he State wherein they reside."

															As appears upon the face of the amendment, as well as from the
history of the 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, 83 U. S. 73 ; Strauder v. West Virginia (1879), 100 U.
S. 303 , 100 U. S.
306 .; Ex parte Virginia (1879). 100 U.
S. 339 , 100 U. S. 35 ; Neal v. Delaware (1880), 103 U. S. 370 , 103 U. S. 386 ; Elk v. Wilkins (1884), 112 U. S. 94 , 112 U. S. 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, Page 169 U. S. 677 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. 83 U. S. 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. 83 U. S. 73 , 83 U. S. 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. Page 169 U. S. 678 83 U. S. 95 , 83 U. S. 111 .
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. 83 U. S. 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 nor 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. 83 U. S. 128 , 83 U. S.
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. 83 U. S. 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 any 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 consuls 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 authority to represent their
sovereign in his intercourse Page 169 U. S. 679 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 § 48;
Wheaton International Law (8th ed.) § 249; The
Anne (1818), 3 Wheat. 435, 16 U. S. 445 , 16 U. S. 446 ; Gittings v. Crawford (1838), Taney 1, 10; In re
Baiz (1890), 135 U. S. 403 , 135 U. S.
424 .

															In weighing a remark uttered under such circumstances, it is
well to bear in mind the often quoted 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, 19 U. S.
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 Page 169 U. S. 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, 88 U. S.
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 that 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 from his tribe and 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 the persons according to whose
numbers representatives in Congress and direct taxes were
apportioned among the Page 169 U. S. 681 several States, and Congress was empowered to regulate commerce
not only "with foreign nations" and among the 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 immediate
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 Harlan 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 that act, national citizenship was
conferred directly upon all persons in this country, of whatever
race (excluding only 'Indians not taxed'), who were born within Page 169 U. S. 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. 1114.

															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 the 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, 18 b; Cockburn on Nationality, 7; Dicey Conflict of Laws, 177; Inglis v. Sailors' Snug
Harbor , 3 Pet. 99, 28 U. S. 155 ; 2
Kent Com. 39, 42.

															The principles upon which each of those exceptions rests were
long ago distinctly stated by this court. Page 169 U. S. 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 to 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. 17 U. S.
254 .

															In the great case of The 11 U. S. 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 present purpose,
to give little more than the outlines. The opinion did not touch
upon the anomalous casts 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 Page 169 U. S. 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 that 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 11 U. S.
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
extraterritorial 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 Page 169 U. S. 685 manner, she should be exempt from the jurisdiction of the
country."

															7 Cranch 11 U. S.
137 -139, 11 U. S. 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 extraterritorial, 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 11 U. S. 138 , 11 U. S.
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 Page 169 U. S. 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 counties 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 11 U. S.
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, 83 U. S. 155 ; Radich v. Hutchins (1877), 95 U. S.
210 ; Wildenhus' Case (1887), 120 U. S.
1 ; Chae Chan Ping v. United States (1889), 130 U. S. 581 , 130 U. S. 603 , 130 U. S.
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 Page 169 U. S. 687 to a foreign government. Acts of March 26, 1790, c. 3; January
29, 1795, c. 20, § 1; June 18, 1798, c. 54, §§ 1, 6; 1 Stat. 103,
414, 566, 568; April 14, 1802, c. 28, § 1, 2 Stat. 153; March 22,
1816, c. 32, § 1; 3 Stat. 258; May 24, 1828, c. 116, § 2; 4 Stat.
310; Rev.Stat. § 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, § 3; 1 Stat. 415; April 14, 180, c. 28, § 4; 2 Stat. 155;
February 10, 1855, c. 71; 10 Stat. 604; Rev.Stat. §§ 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 the
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 Page 169 U. S. 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 that 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
acquisition of citizenship by facts occurring within the limits of
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, notwithstanding 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. Page 169 U. S. 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 the 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. 128 b ), 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 Page 169 U. S. 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
may 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:

															"Every independent State has as one of the incidents of its
sovereignty the right of municipal legislation and jurisdiction
over all persons within its territory, and may therefore change
their nationality by naturalization, and this without regard to the
municipal laws of the country whose subjects are so naturalized, as
long as they remain, or exercise the rights conferred by
naturalization, within the territory and jurisdiction of the State
which grants it."

															"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 it 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. " Page 169 U. S. 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 lawmaking 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 jurisdiction 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 citizen
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 conclusions of Attorney General
Hoar in his opinion above cited. U.S. Foreign Relations, 1886, p
303; 2 Calvo Droit International, § 546. Page 169 U. S. 692 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 extraterritorially 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 to 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 Page 169 U. S. 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. 6 a, "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
quoted, "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 Page 169 U. S. 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, 56; United States v.
Carlisle , 16 Wall. 147, 83 U. S. 155 ; Calvin's Case, 7 Rep. 6 a; Ellesmere on Postnati
63; 1 Hale P.C. 62; 4 Bl.Com. 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 Bew v. United States 144 U. S.
47 , 144 U. S. 61 , 144 U. S. 62 ; Fong Yue Ting v. United States (1893), 149 U.
S. 698 , 149 U. S. 724 ; Lem Moon Sing v. United States (1893), 158 U.
S. 538 , 158 U. S. 547 ; Wong Wing v. United States (1896), 163 U.
S. 228 , 163 U. S.
238 .

															In Yick Wo v. Hopkins, the decision was that an
ordinance Page 169 U. S. 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 § 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. 118 U.S. 368, 118 U. S. 369 .
The manner in which reference was made, in the passage above
quoted, to § 1977 of the Revised Statutes shows that the change of
phrase in that section, reenacting § 16 of the statute of May 31,
1870, c. 114, 16 Stat. 144, as compared with § 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 Page 169 U. S. 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 hardly 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 ck 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 Page 169 U. S. 697 United States," or, as stated by Mr. Justice Brewer in his
dissenting opinion, "whether the petitioner was born in this
country or not." 140 U.S. 140 U. S.
419 .

															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, subjects of the Emperor of China, is a
native-born citizen of the United States. In re Look Tin
Sing (1884), 10 Sawyer 358; 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. 7; In re
Wong Kim Arm (1896), 71 Fed.Rep. 38. 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, Page 169 U. S. 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 herein 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 Page 169 U. S. 699 the United States to be entitled to civil rights and to equal
protection before the law with others."

															Congressional Globe, 39th Congress, 1st sess. 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 acts, 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 Page 169 U. S. 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. 149 U. S. 711 , 149 U. S. 713 , 149 U. S.
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 nonetheless 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 Page 169 U. S. 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
lawmaking power."

															158 U.S. 547, 158 U. S.
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 persons." 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, § 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 Page 169 U. S. 702 18, 1875, c. 80, by inserting the words above printed in
brackets. Rev.Stat. (2d ed.) § 2169; 18 Stat. 318. Those statutes
were held, by the Circuit Court of the United States in California,
not to embrace Chinese aliens. In re Ah Yup (1878), 5
Sawyer 155. And by the act of May 6, 1882, c. 126, § 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. 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. 111. 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.Rep.
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 Page 169 U. S. 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 under which a native might sue." Osborn v. United States
Bank , 9 Wheat. 738, 22 U. S. 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 Page 169 U. S. 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 Amendment.

															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. § 1999, reenacting act of July 7, 1868, c. 249, § 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 his 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 Page 169 U. S. 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 parent 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. * Acts of May 6, 1882, c. 126, 22 Stat. 58; July 5, 1884, c.
220, 23 Stat. 116; September 13, 1888, c. 1015, and October 1,
1888, c. 1064, 2 Stat. 476, 504; May 5, 1892, c. 60, 27 Stat. 25;
August 18, 1894, c. 301, 28 Stat. 390.

															MR. CHIEF JUSTICE FULLER, with whom concurred MR. JUSTICE HARLAN
dissenting.

															I cannot concur in the opinion and judgment of the court in this
case.

															The proposition is that a child born in this country of parents
who were not citizens of the United States, and under the laws of
their own country and of the United States could not become such --
as was the fact from the beginning of the Government in respect of
the class of aliens to which the parents in this instance belonged
-- is, from the moment of his birth a citizen of the United States
by virtue of the first clause of the Fourteenth Amendment, any act
of Congress to the contrary notwithstanding.

															The argument is, that, although the Constitution prior to that
amendment nowhere attempted to define the words "citizens of the
United States" and "natural-born citizen" as used therein, yet that
it must be interpreted in the light of the English common law rule
which made the place of birth the criterion of nationality; that
that rule

															"was in force in all Page 169 U. S. 706 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;"

															and

															"that, before the enactment of the Civil Rights Act of 1866 and
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."

															Thus, the Fourteenth Amendment is held to be merely declaratory
except that it brings all persons, irrespective of color, within
the scope of the alleged rule, and puts that rule beyond he control
of the legislative power.

															If the conclusion of the majority opinion is correct, then the
children of citizens of the United States, who have been born
abroad since July 8, 1868, when the amendment was declared
ratified, were, and are, aliens, unless they have, or shall on
attaining majority, become citizens by naturalization in the United
States, and no statutory provision to the contrary is of any force
or effect. And children who are aliens by descent, but born on our
soil, are exempted from the exercise of the power to exclude or to
expel aliens, or any class of aliens, so often maintained by this
court, an exemption apparently disregarded by the acts in respect
of the exclusion of persons of Chinese descent.

															The English common law rule, which it is insisted was in force
after the Declaration of Independence, was that

															"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."

															Cockburn on Nationality 7.

															The tie which bound the child to the Crown was indissoluble. Page 169 U. S. 707 The nationality of his parents had no bearing on his
nationality. Though born during a temporary stay of a few days, the
child was irretrievably a British subject. Hall on Foreign
Jurisdiction, etc., § 1.

															The rule was the outcome of the connection in feudalism between
the individual and the soil on which he lived, and the allegiance
due was that of liegemen to their liege lord. It was not local and
temporary, as was the obedience to the laws owed by aliens within
the dominions of the Crown, but permanent and indissoluble, and not
to be cancelled by any change of time or place or
circumstances.

															And it is this rule, pure and simple, which it is asserted
determined citizenship of the United States during the entire
period prior to the passage of the act of April 9, 1866, and the
ratification of the Fourteenth Amendment, and governed the meaning
of the words "citizen of the United States" and "natural-born
citizen" used in the Constitution as originally framed and adopted.
I submit that no such rule obtained during the period referred to,
and that those words bore no such construction; that the act of
April 9, 1866, expressed the contrary rule; that the Fourteenth
Amendment prescribed the same rule as the act, and that, if that
amendment bears the construction now put upon it, it imposed the
English common law rule on this country for the first time, and
made it "absolute and unbending" just as Great Britain was being
relieved from its inconveniences.

															Obviously, where the Constitution deals with common law rights
and uses common law phraseology, its language should be read in the
light of the common law; but when the question arises as to what
constitutes citizenship of the nation, involving as it does
international relations, and political, as contradistinguished from
civil, status, international principles must be considered, and,
unless the municipal law of England appears to have been
affirmatively accepted, it cannot be allowed to control in the
matter of construction.

															Nationality is essentially a political idea, and belongs to the
sphere of public law. Hence, Mr. Justice Story, in Shanks v.
Dupont , 3 Pet. 242, 28 U. S. 248 ,
said that the incapacities of femes Page 169 U. S. 708 covert at common law

															"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."

															Twiss, in his work on the Law of actions, says that

															"natural allegiance, or the obligation of perpetual obedience to
the government of a country wherein a man may happen to have been
born, which he cannot forfeit, or cancel, or vary by any change of
time or place or circumstance, is the creature of civil law, and
finds no countenance in the law of nations, as it is in direct
conflict with the incontestable rule of that law."

															Vol. 1, p. 231.

															Before the Revolution, the view of the publicists had been thus
put by Vattel:

															"The natives, or natural-born citizens, are those born in the
country of parents who are citizens. As the society cannot exist
and perpetuate itself otherwise than by the children of the
citizens, those children naturally follow the condition of their
fathers, and succeed to all their rights. The society is supposed
to desire this in consequence of what it owes to its own
preservation, and it is presumed as matter of course that each
citizen, on entering into society, reserves to his children the
right of becoming members of it. The country of the fathers is
therefore that of the children, and these become true citizens
merely by their tacit consent. We shall soon see whether, on their
coming to the years of discretion, they may renounce their right,
and what they owe to the society in which they were born. I say
that, in order to be of the country, it is necessary that a person
be born of a father who is a citizen; for, if he is born there of a
foreigner, it will be only the place of his birth, and not his
country."

															Book I, c.19, § 212.

															"The true bond which connects the child with the body politic is
not the matter of an inanimate piece of land, but the moral
relations of his parentage. . . . The place of birth produces no
change in the rule that children follow the condition of their
fathers, for it is not naturally the place of birth that gives
rights, but extraction."

															And to the same effect are the modern writers, as for
instance, Page 169 U. S. 709 Bar, who says:

															"To what nation a person belongs is by the laws of all nations
closely dependent on descent; it is almost an universal rule that
the citizenship of the parents determines it -- that of the father
where children are lawful, and, where they are bastards, that of
their mother, without regard to the place of their birth, and that
must necessarily be recognized as the correct canon, since
nationality is, in its essence, dependent on descent."

															Int.Law. § 31.

															The framers of the Constitution were familiar with the
distinctions between the Roman law and the feudal law, between
obligations based on territoriality and those based on the personal
and invisible character of origin, and there is nothing to show
that, in the matter of nationality, they intended to adhere to
principles derived from regal government, which they had just
assisted in overthrowing.

															Manifestly, when the sovereignty of the Crown was thrown off and
an independent government established, every rule of the common law
and every statute of England obtaining in the Colonies in
derogation of the principles on which the new government was
founded was abrogated.

															The States, for all national purposes embraced in the
Constitution, became one, united under the same sovereign authority
and governed by the same laws, but they retained their jurisdiction
over all persons and things within their territorial limits except
where surrendered to the General Government or restrained by the
Constitution, and protection to life, liberty and property rested
primarily with them. So far as the jus commune, or folk-right, relating to the rights of persons was
concerned, the Colonies regarded it as their birthright, and
adopted such parts of it as they found applicable to their
condition. Van Ness v.
Pacard , 2 Pet. 137.

															They became sovereign and independent States, and when the
Republic was created, each of the thirteen States had its own local
usages, customs and common law, while, in respect of the National
Government, there necessarily was no general, independent and
separate common law of the United States, nor has there ever been. Wheaton v.
Peter , 8 Pet. 591, 33 U. S.
658 . Page 169 U. S. 710 As to the jura corona, including therein the obligation
of allegiance, the extent to which these ever were applicable in
this country depended on circumstances, and it would seem quite
clear that the rulemaking locality of birth, the criterion of
citizenship because creating a permanent tie of allegiance, no more
survived the American Revolution than the same rule survived the
French Revolution.

															Doubtless, before the latter event, in the progress of
monarchical power, the rule which involved the principle of liege
homage may have become the rule of Europe; but that idea never had
any basis in the United States.

															A Chief Justice Taney observed in Fleming v.
Page , 9 How. 603, 50 U. S. 618 ,
though in a different connection:

															"It is true that most of the States have adopted the principles
of English jurisprudence so far as it concerns private and
individual rights. And when such rights are in question, we
habitually refer to the English decisions not only with respect,
but in many cases as authoritative. But in the distribution of
political power between the great departments of government, there
is such a wide difference between the power conferred on the
President of the United States and the authority and sovereignty
which belong to the English Crown that it would be altogether
unsafe to reason from any supposed resemblance between them, either
as regards conquest in war or any other subject where the rights
and powers of the executive arm of the government are brought into
question. Our own Constitution and form of government must be our
only guide."

															And Mr. Lawrence, in his edition of Wheaton (Lawrence's Wheaton,
p. 920), makes this comment:

															"There is, it is believed, as great a difference between the
territorial allegiance claimed by an hereditary sovereign on feudal
principles and the personal right of citizenship participated in by
all the members of the political community, according to American
institutions, as there is between the authority and sovereignty of
the Queen of England and the power of the American President, and
the inapplicability of English precedents is as clear in the one
case as in the other. The same view, with particular application to
naturalization, was early taken by Page 169 U. S. 711 the American commentator on Blackstone. Tucker's Blackstone,
Vol. 1, Pt. 2, Appx. p. 96."

															Blackstone distinguished allegiance into two sorts, the one
natural and perpetual, the other local and temporary. Natural
allegiance, so-called, was allegiance resulting from birth in
subjection to the Crown, and indelibility was an essential, vital
and necessary characteristic.

															The Royal Commission to inquire into the Laws of Naturalization
and Allegiance was created May 21, 1868, and, in their report, the
Commissioners, among other things, say:

															"The allegiance of a natural-born British subject is regarded by
the Common Law as indelible. We are of opinion that this doctrine
of the Common Law is neither reasonable nor convenient. It is at
variance with those principles on which the rights and duties of a
subject should be deemed to rest; it conflicts with that freedom of
action which is now recognized as most conducive to the general
good, as well as to individual happiness and prosperity, and it is
especially inconsistent with the practice of a State which allows
to its subjects absolute freedom of emigration."

															However, the Commission, by a majority, declined to recommend
the abandonment of the rule altogether, though "clearly of opinion
that it ought not to be, as it now is, absolute and unbending;" but
recommended certain modifications which were carried out in
subsequent legislation.

															But from the Declaration of Independence to this day, the United
States have rejected the doctrine of indissoluble allegiance and
maintained the general right of expatriation, to be exercised in
subordination to the public interests and subject to
regulation.

															As early as the act of January 29, 1795, c. 20, 1 Stat. 414,
applicants for naturalization were required to take not simply an
oath to support the Constitution of the United States, but of
absolute renunciation and abjuration of all allegiance and fidelity
to every foreign prince or State, and particularly to the prince or
State of which they were before the citizens or subjects.

															The statute 3 Jac. 1, c. 4, provided that promising
obedience Page 169 U. S. 712 to any other prince, State, or potentate subjected the person so
doing to be adjudged a traitor, and to suffer the penalty of high
treason, and in respect of the act of 1795, Lord Grenville wrote to
our minister, Rufus King:

															"No British subject can, by such a form of renunciation as that
which is prescribed in the American law of naturalization, divest
himself of his allegiance to his sovereign. Such a declaration of
renunciation made by any of the King's subjects would, instead of
operating as a protection to them, be considered an act highly
criminal on their part."

															2 Amer.St.Pap. 19. And see Fitch v. Weber, 6 Hare
51.

															Nevertheless, Congress has persisted from 1795 in rejecting the
English rule and in requiring the alien who would become a citizen
of the United States, in taking on himself the ties binding him to
our Government, to affirmatively sever the ties that bound him to
any other.

															The subject was examined at length in 1856, in an opinion given
the Secretary of State by Attorney General Cushing, 8
Opins.Attys.Gen. 139, where the views of the writers on
international law and those expressed in cases in the Federal and
state courts are largely set forth, and the Attorney General
says:

															"The doctrine of absolute and perpetual allegiance, the root of
the denial of any right of emigration, is inadmissible in the
United States. It was a matter involved in, and settled for us by,
the Revolution which founded the American Union."

															"Moreover, the right of expatriation, under fixed circumstances
of time and of manner, being expressly asserted in the legislatures
of several of the States and confirmed by decisions of their
courts, must be considered as thus made a part of the fundamental
law of the United States."

															Expatriation included not simply the leaving of one's native
country, but the becoming naturalized in the country adopted as a
future residence. The emigration which the United States encouraged
was that of those who could become incorporate with its people,
make its flag their own, and aid in the accomplishment of a common
destiny, and it was obstruction to such emigration that made one of
the charges against the Crown in the Declaration. Page 169 U. S. 713 Ainslie v. Martin, 9 Mass. 454, 460 (1813); Murray
v. McCarty, 2 Munf. 393 (1811); Alsberry v. Hawkins, 9 Dana 177 (1839), are among the cases cited. In Ainslie v.
Martin, the indelibility of allegiance according to the common
law rule was maintained, while in Murray v. McCarty and Alberry v. Hawkins, the right of expatriation was
recognized as a practical and fundamental doctrine of America.
There was no uniform rule so far as the States were severally
concerned, and none such assumed in respect of the United
States.

															In 1859, Attorney General Black thus advised the President (9
Op. 356):

															"The natural right of every free person who owes no debts and is
not guilty of any crime to leave the country of his birth in good
faith and for an honest purpose, the privilege of throwing off his
natural allegiance and substituting another allegiance in its place
-- the general right, in one word, of expatriation, is
incontestable. I know that the common law of England denies it,
that the judicial decisions of that country are opposed to it, and
that some of our own courts, misled by British authority, have
expressed, though not very decisively, the same pinion. But all
this is very far from settling the question. The municipal code of
England is not one of the sources from which we derive our
knowledge of international law. We take it from natural reason and
justice, from writers of known wisdom, and from the practice of
civilized nations. All these are opposed to the doctrine of
perpetual allegiance."

															In the opinion of the Attorney General, the United States, in
recognizing the right of expatriation, declined from the beginning
to accept the view that rested the obligation of the citizen on
feudal principles, and proceeded on the law of nations, which was
in direct conflict therewith.

															And the correctness of this conclusion was specifically affirmed
not many years after, when the right, as the natural and inherent
right of all people and fundamental in this country, was declared
by Congress in the act of July 27, 1838, 15 Stat. 223, c. 249,
carried forward into sections 1999 and 2000 of the Revised
Statutes, in 1874. Page 169 U. S. 714 It is beyond dispute that the most vital constituent of the
English common law rule has always been rejected in respect of
citizenship of the United States.

															Whether it was also the rule at common law that the children of
British subjects born abroad were themselves British subjects --
nationality being attributed to parentage, instead of locality --
has been variously determined. If this were so, of course, the
statute of Edw. III was declaratory, as was the subsequent
legislation. But if not, then such children were aliens, and the
statute of 7 Anne and subsequent statutes must be regarded as, in
some sort, acts of naturalization. On the other hand, it seems to
me that the rule partus sequitur patrem has always applied
to children of our citizens born abroad, and that the acts of
Congress on this subject are clearly declaratory, passed out of
abundant caution to obviate misunderstandings which might arise
from the prevalence of the contrary rule elsewhere.

															Section 1993 of the Revised Statutes provides that children so
born

															"are declared to be citizens of the United States; but the
rights of citizenship shall not descend to children whose fathers
never resided in the United States."

															Thus, a limitation is prescribed on the passage of citizenship
by descent beyond the second generation if then surrendered by
permanent nonresidence, and this limitation was contained in all
the acts from 1790 down. Section 217 provides that such children
shall "be considered as citizens thereof."

															The language of the statute of 7 Anne, c. 5, is quite different
in providing that

															"the children of all natural-born subjects born out of the
ligeance of Her Majesty, her heirs and successors, shall be deemed,
adjudged and taken to be natural-born subjects of this kingdom to
all intents, constructions and purposes whatsoever."

															In my judgment, the children of our citizens born abroad were
always natural-born citizens from the standpoint of this
Government. If not, and if the correct view is that they were
aliens but collectively naturalized under the act of Congress which
recognized them as natural-born, then those born since the
Fourteenth Amendment are not citizens at all, Page 169 U. S. 715 unless they have become such by individual compliance with the
general laws for the naturalization of aliens, because they are not
naturalized " in the United States."

															By the fifth clause of the first section of article two of the
Constitution, it is provided that:

															"No person except a natural-born citizen, or a citizen of the
United States, at the time of the adoption of the Constitution,
shall be eligible to the office of President; neither shall any
person be eligible to that office who shall not have attained to
the age of thirty-five years, and been fourteen years a resident
within the United States."

															In the convention, it was, says Mr. Bancroft,

															"objected that no number of years could properly prepare a
foreigner for that place; but as men of other lands had spilled
their blood in the cause of the United States, and had assisted at
every stage of the formation of their institutions, on the seventh
of September, it was unanimously settled that foreign-born
residents of fourteen years who should be citizens at the time of
the formation of the Constitution are eligible to the office of
President."

															2 Bancroft Hist. U.S. Const. 193.

															Considering the circumstances surrounding the framing of the
Constitution, I submit that it is unreasonable to conclude that
"natural-born citizen" applied to everybody born within the
geographical tract known as the United States, irrespective of
circumstances, and that the children of foreigners, happening to be
born to them while passing through the country, whether of royal
parentage or not, or whether of the Mongolian, Malay or other race,
were eligible to the Presidency, while children of our citizens,
born abroad, were not.

															By the second clause of the second section of article one, it is
provided that:

															"No person shall be a representative who shall not have attained
to the age of twenty-five years, and been seven years a citizen of
the United States, and who shall not, when elected, be an
inhabitant of that State of which he shall be chosen;"

															and, by the third clause of section three, that:

															"No person shall be a senator who shall not have attained to the
age of thirty years, and been nine years a citizen of the United
States, and who shall not, when elected, be an inhabitant of that
State for which he shall be chosen. " Page 169 U. S. 716 At that time, the theory largely obtained, as stated by Mr.
Justice Story in his Commentaries on the Constitution, "that every
citizen of a State is ipso facto a citizen of the United
States." § 1693.

															Mr. Justice Curtis, in Dred Scott v.
Sandford , 19 How. 396, 60 U. S. 576 ,
expressed the opinion that, under the Constitution of the United
States

															"every free person born on the soil of a State, who is a citizen
of that State by force of its Constitution or laws, is also a
citizen of the United States."

															And he said:

															"Among the powers unquestionably possessed by the several States
was that of determining what persons should and what persons should
not be citizens. It was practicable to confer on the Government of
the Union this entire power. It embraced what may, well enough for
the purpose now in view, be divided into three parts. First: The power to remove the disabilities of alienage,
either by special acts in reference to each individual case or by
establishing a rule of naturalization to be administered and
applied by the courts. Second: Determining what persons
should enjoy the privileges of citizenship, in respect to the
internal affairs of the several States. Third: What
native-born persons should be citizens of the United States."

															"The first-named power, that of establishing a uniform rule of
naturalization, was granted, and here the grant, according to its
terms, stopped. Construing a Constitution containing only limited
and defined powers of government, the argument derived from this
definite and restricted power to establish a rule of naturalization
must be admitted to be exceedingly strong. I do not say it is
necessarily decisive. It might be controlled by other parts of the
Constitution. But when this particular subject of citizenship was
under consideration, and, in the clause specially intended to
define the extent of power concerning it, we find a particular part
of this entire power separated from the residue and conferred on
the General Government, there arises a strong presumption that this
is all which is granted, and that the residue is left to the States
and to the people. And this presumption is, in my opinion,
converted into a certainty by an examination of all such other
clauses of the Constitution as touch this subject. " Page 169 U. S. 717 But in that case, Mr. Chief Justice Taney said:

															"The words 'people of the United States' and 'citizens' are
synonymous terms, and mean the same thing. They both describe the
political body who, according to our republican institutions, form
the sovereignty, and who hold the power and conduct the government
through their representatives. They are what we familiarly call the
'sovereign people,' and every citizen is one of this people and a
constituent member of this sovereignty. In discussing this
question, we must not confound the rights of citizenship which a
State may confer within its own limits and the rights of
citizenship as a member of the Union. It does not by any means
follow, because he has all the rights and privileges of a citizen
of a State, that he must be a citizen of United States. He may have
all of the rights and privileges of a citizen of a State and yet
not be entitled to the rights and privileges of a citizen in any
other State. For, previous to the adoption of the Constitution of
the United States, every State had the undoubted right to confer on
whomsoever it pleased the character of citizen, and to endow him
with all its rights. But this character, of course, was confined to
the boundaries of the State, and gave him no rights or privileges
in other States beyond those secured to him by the laws of nations
and the comity of States. Nor have the several States surrendered
the power of conferring these rights and privileges by adopting the
Constitution of the United States. Each State may still confer them
upon an alien, or anyone it thinks proper, or upon any class or
description of persons; yet he would not be a citizen in the sense
in which that word is used in the Constitution of the United
States, nor entitled to sue as such in one of its courts, nor to
the privileges and immunities of a citizen in the other States. The
rights which he would acquire would be restricted to the State
which gave them. The Constitution has conferred on Congress the
right to establish an uniform rule of naturalization, and this
right is evidently exclusive, and has always been held by this
court to be so. Consequently, no State, since the adoption of the
Constitution, can by naturalizing an alien invest him with the
rights and privileges secured to a citizen of a State under the
Federal Page 169 U. S. 718 Government, although, so far as the State alone was concerned,
he would undoubtedly be entitled to the rights of a citizen, and
clothed with all the rights and immunities which the Constitution
and laws of the State attached to that character."

															Plainly, the distinction between citizenship of the United
States and citizenship of a State thus pointed out involved then,
as now, the complete rights of the citizen internationally, as
contradistinguished from those of persons not citizens of the
United States.

															The English common law rule recognized no exception in he
instance of birth during the mere temporary or accidental sojourn
of the parents. As allegiance sprang from the place of birth
regardless of parentage and supervened at the moment of birth, the
inquiry whether the parents were permanently or only temporarily
within the realm was wholly immaterial. And it is settled in
England that the question of domicil is entirely distinct from that
of allegiance. The one relates to the civil, and the other to the
political, status. Udny v. Udny, L.R. 1 H.L.Sc. 441,
457.

															But a different view as to the effect of permanent abode on
nationality has been expressed in this country.

															In his work on Conflict of Laws, § 48, Mr. Justice Story,
treating the subject as one of public law, said:

															"Persons who are born in a country are generally deemed to be
citizens of that country. A reasonable qualification of the rule
would seem to be that it should not apply to the children of
parents who were in itinere in the country, or who were
abiding there for temporary purposes, as for health or curiosity,
or occasional business. It would be difficult, however, to assert
that, in the present state of public law, such a qualification is
universally established."

															Undoubtedly all persons born in a country are presumptively
citizens thereof, but the presumption is not irrebuttable.

															In his Lectures on Constitutional Law, p. 79, Mr. Justice Miller
remarked:

															"If a stranger or traveler passing through, or temporarily
residing in, this country, who has not himself been naturalized and
who claims to owe no allegiance to our Government, has a child born
here which goes out of the country Page 169 U. S. 719 with its father, such child is not a citizen of the United
States, because it was not subject to its jurisdiction."

															And to the same effect are the rulings of Mr. Secretary
Frelinghuysen in the matter of Hausding, and Mr. Secretary Bayard
in the matter of Greisser.

															Hausding was born in the United States, went to Europe, and,
desiring to return, applied to the minister of the United States
for a passport, which was refused on the ground that the applicant
was born of Saxon subjects temporarily in the United States. Mr.
Secretary Frelinghuysen wrote to Mr. Kasson, our minister:

															"You ask 'Can one born a foreign subject, but within the United
States, make the option after his majority, and while still living
abroad, to adopt the citizenship of his birthplace? It seems not,
and that he must change his allegiance by emigration and legal
process of naturalization.' Sections 1992 and 1993 of the Revised
Statutes clearly show the extent of existing legislation; that the
fact of birth, under circumstances implying alien subjection,
establishes, of itself, no right of citizenship, and that the
citizenship of a person so born is to be acquired in some
legitimate manner through the operation of statute. No statute
contemplates the acquisition of the declared character of an
American citizen by a person not at the time within the
jurisdiction of the tribunal of record which confers that
character."

															Greisser was born in the State of Ohio in 1867, his father being
a German subject and domiciled in Germany, to which country the
child returned. After quoting the act of 1866 and the Fourteenth
Amendment, Mr. Secretary Bayard said:

															"Richard Greisser was no doubt born in the United States, but he
was on his birth 'subject to a foreign power,' and 'not subject to
the jurisdiction of the United States.' He was not, therefore,
under the statute and the Constitution a citizen of the United
States by birth, and it is not pretended that he has any other
title to citizenship."

															2 Whart.Int.Dig. 399.

															The Civil Rights Act became a law April 9, 1866 (14 Stat. 27, c.
31), and provided:

															"That all persons born in the United States and not subject to
any foreign power, excluding Indians Page 169 U. S. 720 not taxed, are hereby declared to be citizens of the United
States."

															And this was reenacted June 22, 1874, in the Revised Statutes,
section 1992. .

															The words "not subject to any foreign power" do not, in
themselves, refer to mere territorial jurisdiction, for the persons
referred to are persons born in the United States. All such persons
are undoubtedly subject to the territorial jurisdiction of the
United States, and yet the act concedes that nevertheless they may
be subject to the political jurisdiction of a foreign government.
In other words, by the terms of the act, all persons born in the
United States, and not owing allegiance to any foreign power, are
citizens.

															The allegiance of children so born is not the local allegiance
arising from their parents' merely being domiciled in the country,
and it is single and not double, allegiance. Indeed, double
allegiance, in the sense of double nationality, has no place in our
law, and the existence of a man without a country is not
recognized.

															But it is argued that the words "and not subject to any foreign
power" should be construed as excepting from the operation of the
statute only the children of public ministers and of aliens born
during hostile occupation.

															Was there any necessity of excepting them? And if there were
others described by the words, why should the language be construed
to exclude them?

															Whether the immunity of foreign ministers from local allegiance
rests on the fiction of extraterritoriality or on the waiver of
territorial jurisdiction by receiving them as representatives of
other sovereignties, the result is the same.

															They do not owe allegiance otherwise than to their own
governments, and their children cannot be regarded as born within
any other.

															And this is true as to the children of aliens within territory
in hostile occupation, who necessarily are not under the protection
of, nor bound to render obedience to, the sovereign whose domains
are invaded; but it is not pretended that the children of citizens
of a government so situated would not become its citizens a their
birth, as the permanent allegiance Page 169 U. S. 721 of their parents would not be severed by the mere fact of the
enemy's possession.

															If the act of 1866 had not contained the words, "and not subject
to any foreign power," the children neither of public ministers nor
of aliens in territory in hostile occupation would have been
included within its terms on any proper construction, for their
birth would not have subjected them to ties of allegiance, whether
local and temporary or general and permanent.

															There was no necessity as to them for the insertion of the
words, although they were embraced by them.

															But there were others in respect of whom the exception was
needed, namely, the children of aliens, whose parents owed local
and temporary allegiance merely, remaining subject to a foreign
power by virtue of the tie of permanent allegiance, which they had
not severed by formal abjuration or equivalent conduct, and some of
whom were not permitted to do so if they would.

															And it was to prevent the acquisition of citizenship by the
children of such aliens merely by birth within the geographical
limits of the United States that the words were inserted.

															Two months after the statute was enacted, on June 16, 1866, the
Fourteenth Amendment was proposed, and declared ratified July 28,
1868. The first clause of the first section reads:

															"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."

															The act was passed and the amendment proposed by the same
Congress, and it is not open to reasonable doubt that the words
"subject to the jurisdiction thereof" in the amendment were used as
synonymous with the words "and not subject to any foreign power" of
the act.

															The jurists and statesmen referred to in the majority opinion,
notably Senators Trumbull and Reverdy Johnson, concurred in that
view, Senator Trumbull saying: "What do we mean by subject to
the jurisdiction of the United States?' Not owing allegiance to
anybody else; that is what it means." And Senator Johnson: "Now, all that this amendment provides Page 169 U. S. 722 is that all persons born within the United States and not
subject to some foreign power -- for that no doubt is the meaning
of the committee who have brought the matter before us -- shall be
considered as citizens of the United States."

															Cong.Globe, 1st Sess. 39th Cong., 2893 et seq. This was distinctly so ruled in Elk v. Wilkins, 112 U. S. 94 , and
no reason is perceived why the words were used if they apply only
to that obedience which all persons not possessing immunity
therefrom must pay the laws of the country in which they happen to
be.

															Dr. Wharton says that the words "subject to the jurisdiction"
must be construed in the sense which international law attributes
to them, but that the children of our citizens born abroad, and of
foreigners born in the United States, have the right on arriving at
full age to elect one allegiance and repudiate the other. Whart.
Conflict of Laws, §§ 10, 11, 12.

															The Constitution and statutes do not contemplate double
allegiance, and how can such election be determined? By section
1993 of the Revised Statutes, the citizenship of the children of
our citizens born abroad may be terminated in that generation by
their persistent abandonment of their country, while, by sections
2167 and 2168, special provision is made for the naturalization of
alien minor residents, on attaining majority, by dispensing with
the previous declaration of intention and allowing three years of
minority on the five years' residence required, and also for the
naturalization of children of aliens whose parents have died after
making declaration of intention. By section 2172, children of
naturalized citizens are to be considered citizens.

															While, then, the naturalization of the father carries with it
that of his minor children, and his declaration of intention
relieves them from the preliminary steps for naturalization, and
minors are allowed to count part of the residence of their minority
on the whole term required, and are relieved from the declaration
of intention, the statutes make no provision for formal declaration
of election by children born in this country of alien parents on
attaining majority.

															The point, however, before us, is whether permanent
allegiance Page 169 U. S. 723 is imposed at birth without regard to circumstances -- permanent
until thrown off and another allegiance acquired by formal acts --
not local and determined by a mere change on domicil.

															The Fourteenth Amendment came before the court in the Slaughterhouse
Cases , 16 Wall. 36, 83 U. S. 73 , at
December term, 1872, the cases having been brought up by writ of
error in May, 180, 10 Wall. 278, and it was held that the first
clause was intended to define citizenship of the United States and
citizenship of a State, which definitions recognized the
distinction between the one and the other; that the privileges and
immunities of citizens of the States embrace generally those
fundamental civil rights for the security of which organized
society was instituted, and which remain, with certain exceptions
mentioned in the Federal Constitution, under the care of the state
governments; while the privileges and immunities of citizens of the
United States are those which arise out of the nature and essential
character of the National government, the provisions of its
Constitution, or its laws and treaties made in pursuance thereof,
and that it is the latter which are placed under the protection of
Congress by the second clause.

															And Mr. Justice Miller, delivering the opinion of the court, in
analyzing the first clause, observed that

															"the phrase 'subject to the jurisdiction thereof' was intended
to exclude from its operation children of ministers, consuls and
citizens or subjects of foreign States, born within the United
States."

															That eminent judge did not have in mind the distinction between
persons charged with diplomatic functions and those who were not,
but was well aware that consuls are usually the citizens or
subjects of the foreign States from which they come, and that,
indeed, the appointment of natives of the places where the consular
service is required, though permissible, has been pronounced
objectionable in principle.

															His view was that the children of "citizens or subjects of
foreign States," owing permanent allegiance elsewhere and only
local obedience here, are not otherwise subject to the jurisdiction
of the United States than are their parents. Page 169 U. S. 724 Mr. Justice Field dissented from the judgment of the court, and
subsequently, in the case of Look Tin Sing, 10 Sawyer 353,
in the Circuit Court for the District of California, held children
born of Chinese parents in the United States to be citizens, and
the cases subsequently decided in the Ninth Circuit followed that
ruling. Hence the conclusion in this case, which the able opinion
of the District Judge shows might well have been otherwise.

															I do not insist that, although what was said was deemed
essential to the argument and a necessary part of it, the point was
definitively disposed of in the Slaughterhouse Cases, particularly as Chief Justice Waite in Minor v.
Happersett , 21 Wall. 162, 88 U. S. 167 ,
remarked that there were doubts which, for the purposes of the case
then in hand, it was not necessary to solve. But that solution is
furnished in Elk v. Wilkins, 112 U. S.
94 , 112 U. S. 101 ,
where the subject received great consideration and it was said:

															"By the Thirteenth Amendment of the Constitution, slavery was
prohibited. The main object of the opening sentence of the
Fourteenth Amendment was to settle the question, upon which there
had been a difference of opinion throughout the country and in this
court, as to the citizenship of free negroes, Scott v.
Sandford , 19 How. 393, and to put it beyond doubt
that all persons, white or black, and whether formerly slaves or
not, born or naturalized in the United States, and owing no
allegiance to any alien power, should be citizens of the
United States, and of the State in which they reside. Slaughterhouse Cases , 16
Wall. 36, 83 U. S. 73 ; Strauder v.
West Virginia, 100 U. S. 303 , 100 U. S.
306 ."

															"This section contemplates two sources of citizenship, and two
sources only: birth and naturalization. The persons declared to be
citizens are 'all persons born or naturalized in the United States,
and subject to the jurisdiction thereof.' The evident meaning of
these last words is 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. And the words relate to the time of
birth in the one case, as they do Page 169 U. S. 725 to the time of naturalization in the other. Persons not this
subject to the jurisdiction of the United States at the time of
birth cannot become so afterwards, except by being
naturalized, either individually, as by proceedings under the
naturalization acts, or collectively, as by the force of a treaty
by which foreign territory is acquired."

															To be "completely subject" to the political jurisdiction of the
United States is to be in no respect or degree subject to the
political jurisdiction of any other government.

															Now I take it that the children of aliens, whose parents have
not only not renounced their allegiance to their native country,
but are forbidden by it system of government, as well as by its
positive laws, from doing so, and are not permitted to acquire
another citizenship by the laws of the country into which they
come, must necessarily remain themselves subject to the same
sovereignty as their parents, and cannot, in the nature of things,
be, any more than their parents, completely subject to the
jurisdiction of such other country.

															Generally speaking, I understand the subjects of the Emperor of
China -- that ancient Empire, with its history of thousands of
years and its unbroken continuity in belief, traditions and
government, in spite of revolutions and changes of dynasty -- to be
bound to him by every conception of duty and by every principle of
their religion, of which filial piety is the first and greatest
commandment, and formerly, perhaps still, their penal laws
denounced the severest penalties on those who renounced their
country and allegiance, and their abettors, and, in effect, held
the relatives at home of Chinese in foreign lands as hostages for
their loyalty.* And Page 169 U. S. 726 whatever concession may have been made by treaty in the
direction of admitting the right of expatriation in some sense,
they seem in the United States to have remained pilgrims and
sojourners, as all their fathers were. 149 U.S. 149 U. S. 717 .
At all events, they have never been allowed by our laws to acquire
our nationality, and, except in sporadic instances, do not appear
ever to have desired to do so.

															The Fourteenth Amendment was not designed to accord citizenship
to persons so situated and to cut off the legislative power from
dealing with the subject.

															The right of a nation to expel or deport foreigners who have not
been naturalized or taken an steps toward becoming citizens of a
country is as absolute and unqualified as the right to prohibit and
prevent their entrance into the country. 149 U.S. 149 U. S.
707 .

															But can the persons expelled be subjected to "cruel and unusual
punishments" in the process of expulsion, as would be the case if
children born to them in this country were separated from them on
their departure, because citizens of the United States? Was it
intended by this amendment to tear up parental relations by the
roots?

															The Fifteenth Amendment provides 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."

															Was it intended thereby that children of aliens should, by
virtue of being born in the Page 169 U. S. 727 United States, be entitled on attaining majority to vote
irrespective of the treaties and laws of the United States in
regard to such aliens?

															In providing that persons born or naturalized in the United
States, and subject to the jurisdiction thereof, are citizens, the
Fourteenth Amendment undoubtedly had particular reference to
securing citizenship to the members of the colored race, whose
servile status had been obliterated by the Thirteenth Amendment and
who had been born in the United States, but were not and never had
been subject to any foreign power. They were not aliens (and, even
if they could be so regarded, this operated as a collective
naturalization), and their political status could not be affected
by any change of the laws for the naturalization of
individuals.

															Nobody can deny that the question of citizenship in a nation is
of the most vital importance. It is a precious heritage, as well as
an inestimable acquisition, and I cannot think that any safeguard
surrounding it was intended to be thrown down by the amendment.

															In suggesting some of the privileges and immunities of national
citizenship in the Slaughterhouse Cases, Mr. Justice
Miller said:

															"Another privilege of a citizen of the United States is to
demand the care and protection of the Federal Government over his
life, liberty, and property when on the high seas or within the
jurisdiction of a foreign government. Of this, there can be no
doubt, nor that the right depends upon his character as a citizen
of the United States."

															Mr. Hall says in his work on Foreign Jurisdiction, etc., §§ 2,
5, the principle is that

															"the legal relations by which a person is encompassed in his
country of birth and residence cannot be wholly put aside when he
goes abroad for a time; many of the acts which he may do outside
his native state have inevitable consequences within it. He may,
for many purposes, be temporarily under the control of another
sovereign than his own, and he may be bound to yield to a foreign
government a large measure of obedience; but his own State still
possesses a right to his allegiance; he is still an integral part
of the national community. A State therefore can enact laws, Page 169 U. S. 728 enjoining or forbidding acts, and defining legal relations,
which apply to its subjects abroad in common with those within its
dominions. It can declare under what conditions it will regard as
valid, acts done in foreign countries which profess to have legal
effect; it can visit others with penalties; it can estimate
circumstances and facts as it chooses."

															On the other hand, the

															"duty of protection is correlative to the rights of a sovereign
over his subjects; the maintenance of a bond between a State and
its subjects while they are abroad implies that the former must
watch over and protect them within the due limit of the rights of
other States. . . . It enables governments to exact reparation for
oppression from which their subjects have suffered, or for injuries
done to them otherwise than by process of law, and it gives the
means of guarding them against the effect of unreasonable laws, of
laws totally out of harmony with the nature or degree of
civilization by which a foreign power affects to be characterized,
and finally of an administration of the laws had beyond a certain
point. When, in these directions, a State grossly fails in its
duties; when it is either incapable of ruling or rules with patent
injustice, the right of protection emerges in the form of
diplomatic remonstrance, and, in extreme cases, of ulterior
measures. It provides a material sanction for rights; it does not
offer a theoretic foundation. It does not act within a foreign
territory with the consent of the sovereign; it acts against him
contentiously from without."

															The privileges or immunities which, by the second clause of the
amendment, the States are forbidden to abridge are the privileges
or immunities pertaining to citizenship of the United States, but
that clause also places an inhibition on the States from depriving
any person of life, liberty or property, and from denying "to any
person within its jurisdiction, the equal protection of the laws,"
that is, of its own laws -- the laws to which its own citizens are
subjected.

															The jurisdiction of the State is necessarily local, and the
limitation relates to rights primarily secured by the States, and
not by the United States. Jurisdiction, as applied to the General
Government, embraces international relations; as applied Page 169 U. S. 729 to the State, it refers simply to its power over persons and
things within its particular limits.

															These considerations lead to the conclusion that the rule in
respect of citizenship of the United States prior to the Fourteenth
Amendment differed from the English common law rule in vital
particulars, and, among others, in that it did not recognize
allegiance as indelible, and in that it did recognize an essential
difference between birth during temporary, and birth during
permanent, residence. If children born in the United States were
deemed presumptively and generally citizens, this was not so when
they were born of aliens whose residence was merely temporary,
either in fact or in point of law.

															Did the Fourteenth Amendment impose the original English common
law rule as a rigid rule on this country?

															Did the amendment operate to abridge the treaty-making power, or
the power to establish an uniform rule of naturalization?

															I insist that it cannot be maintained that this Government is
unable, through the action of the President, concurred in by the
Senate, to make a treaty with a foreign government providing that
the subjects of that government, although allowed to enter the
United States, shall not be made citizens thereof, and that their
children shall not become such citizens by reason of being born
therein.

															A treaty couched in those precise terms would not be
incompatible with the Fourteenth Amendment unless it be held that
that amendment has abridged the treaty-making power.

															Nor would a naturalization law excepting persons of a certain
race and their children be invalid unless the amendment has
abridged the power of naturalization. This cannot apply to our
colored fellow-citizens, who never were aliens -- were never beyond
the jurisdiction of the United States.

															"Born in the United States, and subject to the jurisdiction
thereof," and "naturalized in the United States, and subject to the
jurisdiction thereof," mean born or naturalized under such
circumstances as to be completely subject to that jurisdiction,
that is as completely as citizens of the United States, Page 169 U. S. 730 who are, of course, not subject to any foreign power, and can of
right claim the exercise of the power of the United States on their
behalf wherever they may be. When, then, children are born in the
United States to the subjects of a foreign power, with which it is
agreed by treaty that they shall not be naturalized thereby, and as
to whom our own law forbids them to be naturalized, such children
are not born so subject to the jurisdiction as to become citizens,
and entitled on that ground to the interposition of our Government,
if they happen to be found in the country of their parents' origin
and allegiance, or any other.

															Turning to the treaty between the United States and China,
concluded July 28, 1868, the ratifications of which were exchanged
November 28, 1869, and the proclamation made February 5, 1870, we
find that, by its sixth article, it was provided:

															"Citizens of the United States visiting or residing in China
shall enjoy the same privileges, immunities or exemptions in
respect of travel or residence as may there be enjoyed by the
citizens or subjects of the most favored nation. And, reciprocally,
Chinese subjects residing in the United States shall enjoy the same
privileges, immunities and exemptions in respect to travel or
residence as may there be enjoyed by the citizens or subjects of
the most favored nation. But nothing herein contained shall be held
to confer naturalization on the citizens of the United States in
China, nor upon the subjects of China in the United States."

															It is true that, in the fifth article, the inherent right of man
to change his home or allegiance was recognized, as well as

															"the mutual advantage of the free migration and emigration of
their citizens and subjects, respectively, from the one country to
the other, for the purposes of curiosity, of traffic, or as
permanent residents."

															All this, however, had reference to an entirely voluntary
emigration for these purposes, and did not involve an admission of
change of allegiance unless both countries assented, but the
contrary, according to the sixth article.

															By the convention of March 17, 1894, it was agreed

															"that Chinese laborers or Chinese of any other class, either
permanently Page 169 U. S. 731 or temporarily residing within 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."

															These treaties show that neither Government desired such change,
nor assented thereto. Indeed, if the naturalization laws of the
United States had provided for the naturalization of Chinese
persons, China manifestly would not have been obliged to recognize
that her subjects had changed their allegiance thereby. But our
laws do not so provide, and, on the contrary, are in entire harmony
with the treaties.

															I think it follows that the children of Chinese born in this
country do not, ipso facto, become citizens of the United
States unless the Fourteenth Amendment overrides both treaty and
statute. Does it bear that construction, or rather is it not the
proper construction that all persons born in the United States of
parents permanently residing here and susceptible of becoming
citizens, and not prevented therefrom by treaty or statute, are
citizens, and not otherwise

															But the Chinese, under their form of government, the treaties
and statutes, cannot become citizens, nor acquire a permanent home
here, no matter what the length of their stay may be. Wharton
Confl.Laws, § 1.

															In Fong Yue Ting v. United States, 149 U.
S. 698 , 149 U. S. 717 ,
it was said in respect of the treaty of 1868:

															"After some years' experience under that treaty, the Government
of the United States was brought to the opinion that the presence
within our territory of large numbers of Chinese laborers, of a
distinct race and religion, remaining strangers in the land,
residing apart by themselves, tenaciously adhering to the customs
and usages of their own country, unfamiliar with our institutions,
and apparently incapable of assimilating with our people, might
endanger good order and be injurious to the public interests, and
therefore requested and obtained from China a modification of the
treaty."

															It is not to be admitted that the children of persons so
situated become citizens by the accident of birth. On the
contrary, Page 169 U. S. 732 I am of opinion that the President and Senate by treaty, and the
Congress by naturalization, have the power, notwithstanding the
Fourteenth Amendment, to prescribe that all persons of a particular
race, or their children, cannot become citizens, and that it
results that the consent to allow such persons to come into and
reside within our geographical limits does not carry with it the
imposition of citizenship upon children born to them while in this
country under such consent, in spite of treaty and statute.

															In other words, the Fourteenth Amendment does not exclude from
citizenship by birth children born in the United States of parents
permanently located therein, and who might themselves become
citizens; nor, on the other hand, does it arbitrarily make citizens
of children born in the United States of parents who, according to
the will of their native government and of this Government, are and
must remain aliens.

															Tested by this rule, Wong in Ark never became and is not a
citizen of the United States, and the order of the District Court
should be reversed.

															I am authorized to say that MR JUSTICE HARLAN concurs in this
dissent.

															MR. JUSTICE McKENNA, not having been a member of the court when
this case was argued, took no part in the decision.

															* The fundamental laws of China have remained practically
unchanged since the second century before Christ. The statutes have
from time to time undergone modifications, but there does not seem
to be any English or French translation of the Chinese Penal Code
later than that by Staunton published in 1810. That code
provided:

															"All persons renouncing their country and allegiance, or
devising the means thereof, shall be beheaded, and in the
punishment of this offence, no distinction shall be made between
principals and accessories. The property of all such criminals
shall be confiscated, and their wives and children distributed as
slave to the great officers of State. . . . The parents,
grandparents, brothers and grandchildren of such criminals, whether
habitually living with them under the same roof or not, shall be
perpetually banished to the distance of 2000 lee. "

															"All those who purposely conceal and connive at the perpetration
of this crime shall be strangled. Those who inform against, and
bring to justice, criminals of this description shall be rewarded
with the whole of their property."

															"Those who are privy to the perpetration of this crime, and yet
omit to give any notice or information thereof to the magistrates,
shall be punished with 100 blows and banished perpetually to the
distance of 3000 lee. "

															"If the crime is contrived, but not executed, the principal
shall be strangled, and all the accessories shall, each of them, be
punished with 100 blows, and perpetual banishment to the distance
of 3000 lee. . . ."

															Staunton's Penal Code of China 272, § 255.