Nationality in the United States

Congrefs of the United States:

AT THE SECOND SESSION,
Begun and held at the City of New-York, on Monday the
Fourth of January, one thoufand feven hundred and ninety.

An ACT to eftablifh an uniform Rule of Naturalization.

BE it enacted by the SENATE and HOUSE of REPRESENTATIVES of the United States of America, in Congrefs affembled, That any alien, being a free white perfon, who fhall have refided within the limits and under the jurifdiction of the United States for the term of two years, may be admitted to become a citizen thereof, on application to any Common Law Court of Record, in any one of the States wherein he fhall have refided for the term of one year at leaft, and making proof to the fatisfaction of fuch Court, that he is a person of good character, and taking the oath or affirmation prefcribed by law, to fupport the Conftitution of the United States, which oath or affirmation fuch Court fhall adminifter, and the Clerk of fuch Court fhall record fuch application, and the proceedings thereon ;  and thereupon fuch perfon fhall be confidered as a citizen of the United States.  And the children of fuch perfon fo naturalized, dwelling within the United States, being under the age of twenty-one years at the time of fuch naturalization, fhall alfo be confidered as citizens of the United States.  And the children of citizens of the United States that may be born beyond fea, or out of the limits of the United States, fhall be confidered as natural born citizens :  Provided, That the right of citizenfhip fhall not defcend to perfons whofe fathers have never been refident in the United States : Provided alfo, That no perfon heretofore profcribed by any State, fhall be admitted a citizen as aforefaid, except by an act of the Legiflature of the State in which fuch perfon was profcribed.

FREDERICK AUGUSTUS MUHLENBERG,   
Speaker of the Houfe of Reprefentatives.
JOHN ADAMS, Vice-Prefident of the United States,
and Prefident of the Senate.        

  Approved, March 26th, 1790.
        GEORGE WASHINGTON, Prefident of the United States.

[ top matter omitted ]

An Act supplementary to and to amend the act, instituted "An act to establish an uniform rule of naturalization; and to repeal the act heretofore passed on that subject."

SECTION I. Be it enacted . . . , That no alien shall be admitted to become a citizen of the United States, or of any state, unless in the manner prescribed by the act, instituted "An act to establish an uniform rule of naturalization; and to repeal the act heretofore passed on that subject," he shall have declared his intention to become a citizen of the United States, five years, at least, before his admission, and shall, at the time of his application to be admitted, declare and prove, to the satisfaction of the court having jurisdiction in the case, that he has resided within the United States fourteen years, at least, and within the state or territory where, or for which such court is at the time held, five years, at least, besides conforming to the other declarations, renunciations and proofs, by the said act required, any thing therein to the contrary hereof notwithstanding: Provided, that any alien, who was residing within the limits, and under the jurisdiction of the United States, before . . . [January 29, 1795] . . . may, within one year after the passing of this act -- and any alien who shall have made the declaration of his intention to become a citizen of the United States, in conformity to the provisions of the act [of Jan. 29, 1795] may, within four years after having made the declaration aforesaid, be admitted to become a citizen, in the manner prescribed by the said act, upon his making proof that he has resided five years, at least, within the limits, and under the jurisdiction of the United States: And provided also, that no alien, who shall be a native, citizen, denizen or subject of any nation or state with whom the United States shall be at war, at the time of his application, shall be then admitted to become a citizen of the United States.

SEC. 4. And be it further enacted, That all white persons, aliens, (accredited foreign ministers, consuls, or agents, their families and domestics, excepted) who, after the passing of this act, shall continue to reside, or who shall arrive, or come to reside in any port or place within the territory of the United States, shall be reported, if free, and of the age of twenty-one years, by themselves, or being under the age of twenty-one years, or holden in service, by their parent, guardian, master or mistress in whose care they shall be, to the clerk of the district court of the district, if living within ten miles of the port or place, in which their residence or arrival shall be, and otherwise, to the collector of such port or place, or some officer or other person there, or nearest thereto, who shall be authorized by the President of the United States, to register aliens: And report, as aforesaid, shall be made in all cases of residence, within six months from and after the passing of this act, and in all after cases, within forty-eight hours after the first arrival or coming into the territory of the United States, and shall ascertain the sex, place- of birth, age, nation, place of allegiance or citizenship, condition or occupation, and place of actual or intended residence within the United States, of the alien or aliens reported, and by whom the report is made. . . And the clerk of each district court shall, during one year from the passing of this act, make monthly returns to the department of State, of all aliens registered and returned, as aforesaid, in his office.

SEC. 5. And be it further enacted, That every alien who shall continue to reside, or who shall arrive, as aforesaid, of whom a report is required as aforesaid, who shall refuse or neglect to make such report, and to receive a certificate thereof, shall forfeit and pay the sum of two dollars; and any justice of the peace, or other civil magistrate, who has authority to require surety of the peace, shall and may, on complaint to him made thereof cause such alien to be brought before him, there to give surety of the peace and good behaviour during his residence within the United States, or for such term as the justice or other magistrate shall deem reasonable, and until a report and registry of such alien shall be made, and a certificate thereof, received as aforesaid; and in failure of such surety, such alien shall and may be committed to the common gaol, and shall be there held, until the order which the justice or magistrate shall and may reasonably make, in the premises, shall be performed. And every person, whether alien, or other, having the care of any alien or aliens, under the age of twenty-one years,-or of any white alien holden in service, who shall refuse and neglect to make report thereof, as aforesaid, shall forfeit the sum of two dollars, for each and every such minor or servant, monthly, and every month, until a report and registry, and a certificate thereof, shall be had, as aforesaid.

APPROVED, July 18, 1798

U.S. Supreme Court
U.S. v. WONG KIM ARK, 169 U.S. 649 (1898)

169 U.S. 649

UNITED STATES
v.
WONG KIM ARK.
No. 132.

March 28, 1898

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 21 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 pretense 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 [169 U.S. 649, 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,'1 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 [169 U.S. 649, 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 domicile 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 Kim Ark was not a citizen of the United States. [169 U.S. 649, 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. 71 Fed. 382. The United States appealed to this court.

Sol. Gen. Conrad, for the United States.

Thomas D. Riordan, Maxwell Evarts, and J. Hubley Ashton, for appellee.

Mr. Justice GRAY, after stating the facts in the foregoing language, 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 are still enjoying a permanent domicile 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; n d 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 [169 U.S. 649, 653] therefrom. In 1890 (when he must have been about 17 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 21 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 domicile 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 [169 U.S. 649, 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.' Article 2, 1. 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 in so far as this is done by the affirmative declaration that 'all persons born r naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States.' Amend. art. 14. 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, 422 , 5 S. Sup. Ct. 935; Boyd v. U. S., 116 U.S. 616, 624 , 625 S., 6 Sup. Ct. 524; Smith v. Alabama, 124 U.S. 465 , 8 Sup. Ct. 564. The language of the constitution, as has been well said, could not be understood without reference to the common law. 1 Kent, Comm. 336; Bradley, J., in Moore v. U. S., 91 U.S. 270 , 274. [169 U.S. 649, 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. 167.

In Smith v. Alabama, Mr. Justice Matthews, delivering the judgment of the court, said: 'There is no common law of the United States, in the sense of a national customary law, distinct from the common law of England as adopted by the several states each for itself, applied as its local law, and subject to such alteration as may be provided by its own statutes.' 'There is, however, one clear exception to the statement that there is no national common law. The interpretation of the constitution of the United States is necessarily influenced by the fact that its provisions are framed in the language of the English common law, and are to be read in the light of its history.' 124 U.S. 478 , 8 Sup. Ct. 569.

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 or [169 U.S. 649, 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 Coke, 1, 4b-6a, 18a, 18b; Ellesmere, Postnati, 62-64; s. c. 2 How. St. Tr. 559, 607, 613-617, 639, 640, 659, 679.

The English authorities ever since are to the like effect. Co. Litt. 8a, 128b; Lord Hale, in Harg. Law Tracts, 210, and in 1 Hale, P. C. 61, 62; 1 Bl. Comm. 366, 369, 370, 374; 4 Bl. Comm. 74, 92; Lord Kenyon, in Doe v. Jones, 4 Term R. 300, 308; Cockb. Nat. 7; Dicey, Confl. Laws, pp. 173-177, 741.

In Udny v. Udny (1869) L. R. 1 H. L. Sc. 441, the point decided was one of inheritance, depending upon the question whether the domicile 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 domicile.' Page 452. Lord Westbury, in the passage rei ed 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 domicile (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- [169 U.S. 649, 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.' Pages 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.' Cockb. Nat. 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 [169 U.S. 649, 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 Enl and; 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, Confl. 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, and 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 devest himself absolutely of [169 U.S. 649, 659] that character, otherwise than in such manner as may be prescribed by law, is a question which it is not necessary at present to decide.' 2 Cranch, 64, 119.

In Inglis v. Sailors' Snug Harbor (1830) 3 Pet. 99, in which the plaintiff was born in the city of New York, about the time of the Declaration of Independence, the justices of this court (while differing in opinion upon other points) all agreed that the law of England as to citizenship by birth was the law of the English colonies in America. Mr. Justice Thompson, speaking for the majority of the court, said: 'It is universally admitted, both in the English courts and in those of our own country, that all persons born within the colonies of North America, while subject to the crown of Great Britain, were natural-born British subjects.' Id. 120. Mr. Justice Johnson said: 'He was entitled to inherit as a citizen born of the state of New York.' Id. 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 ligeance, of the sovereign. That is, the party must be born within a place where the sovereign is at the time in full possession and exercise of his power, and the party must also at his birth derive protection from, and consequently owe obedience or allegiance to, the sovereign, as such, de facto. There are some exceptions which are founded upon peculiar reasons, and which, indeed, illustrate and confirm the general doctrine. Thus, a person who is born on the ocean is a subject of the prince to whom his parents then owe allegiance; for he is still deemed under the protection of his sovereign, and born in a place where he has dominion in common with all other sovereigns. So the children of an ambassador are held to be [169 U.S. 649, 660] subjects of the prince whom he represents, although born under the actual protection and in the dominions of a foreign prince.' Id. 155. 'The children of enemies, born in a place within the dominions of another sovereign, then occupied by them by conquest, are still aliens.' Id. 156. 'Nt hing 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.' Id. 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.' Id. 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 (page 245) to the contemporaneous opinions in Inglis v. Sailors' Snug Harbor, [169 U.S. 649, 661] above cited, in which this rule had been distinctly recognized, and in which he had said (page 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, Confl. Laws, 48.

The English statute of 11 & 12 Wm. III. (1700) c. 6, entitled 'An act to enable his majesty's natural-born subjects to inherit the estate of their ancestors, either lineal or collateral, notwithstanding their father or mother were aliens,' enacted that 'all and every person or persons, being the king's natural-born subject or subjects, within any of the king's realms or dominions,' might and should thereafter lawfully inherit and make their titles by descent to any lands 'from any of their ancestors, lineal or collateral, although the father and mother, or father or mother, or other ancestor, of such person or persons, by, from, through or under whom' title should be made or derived, had been or should be 'born out of the king's allegiance, and out of his majesty's realms and dominions,' as fully and effectually, as if such parents or ancestors 'had been naturalized or natural-born subject or subjects within the king's dominions.' 7 Statutes of the Realm, 590. It may be observed that, throughout that statute, persons born within the realm, although children of alien parents, were called 'natural-born subjects.' As that statute included persons born 'within any of the king's realms or dominions,' if 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 [169 U.S. 649, 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.' Id. 356.

Again, in Levy v. McCartee (1832) 6 Pet. 102, 112, 113, 115, which concerned a descent cast since the American Revolution, in the state of New York, where the statute of 11 & 12 Wm. 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. Litt. 8a, 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. Somerville, 9 Wheat. 354.'

In Dred Scott v. Sandford (1857) 19 How. 393, Mr. Justice Curtis said: 'The first section of the second article of the constitution uses the language, 'a natural-born citizen.' It thus assumes that 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.' Id. 576. And to this extent no different opinion was expressed or intimated by any of the other judges.

In U. S. 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 [169 U.S. 649, 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 Abb. (U. S.) 28, 40, 41, Fed. Cas. No. 16,151.

The supreme judicial court of Massachusetts, speaking by Mr. Justice ( afterwards Chief Justice) Sewall, early held that the determination of the question whether a man was a citizen or an alien was 'to be governed altogether by the principles of the common law,' and that it was established, with few exceptions, 'that a man, born within the jurisdiction of the common law, is a citizen of the country wherein he is born. By this circumstance of his birth, he is subjected to the duty of allegiance which is claimed and enforced by the sovereign of his native land and becomes reciprocally entitled to the protection of that sovereign, and to the other rights and advantages which are included in the term 'citizenship." Gardner v. Ward (1805) 2 Mass. 244, note. And again: 'The doctrine of the common law is that every man born within its jurisdiction is a subject of the sovereign of the country where he is born; and allegiance is not personal to the sovereign in the extent that has been contended for; it is due to him in his political capacity of sovereign of the territory where the person owing the allegiance was born.' Kilham v. Ward (1806) Id. 236, 265. It may here be observed that in a recent English case Lord Coleridge expressed the opinion of the queen's bench division that the statutes of 4 Geo. II. (1731) c. 21, and 13 Geo. III. (1773) c. 21 (hereinafter referred to), 'clearly recognize that to the king in his politic, and not in his personal, capacity, is the allegiance of his subjects due.' Isaacson v. Durant, 17 Q. B. Div. 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 [169 U.S. 649, 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 the man to the collective body of the people; and he who before was a 'subject of the king' is now 'a citizen of the state." State v. Manuel (1838) 4 Dev. & b. 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 50 years after the adoption of the constitution, when the matter was elaborately argued in the court of chancery of New York, and decided upon full consideration by Vice Chancellor Sandford in favor of their citizenship. Lynch v. Clarke (1844) 1 Sandf. Ch. 583.

The same doctrine was repeatedly affirmed in the executive departments, as, for instance, by Mr. Marcy, secretary of state, in 1854 ( 2 Whart. Int. Dig. [2d Ed.] p. 394); by Attorney General Black in 1859 (9 Ops. Attys. Gen. 373); and by Attorney General Bates in 1862 (10 Ops. Attys. Gen. 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 [169 U.S. 649, 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, Comm. (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.' Id. 258, note.

Mr. Binney in the second edition of a paper on the Alienigenae of the United States, printed in pamphlet at Philadelphia, with a preface bearing his signature and the date of December 1, 1853, said: 'The common- law principle of allegiance was the law of all the states at the time of the Revolution and at the adoption of the constitution; and by that principle the citizens of the United States are, with the exceptions before mentioned [namely, foreign-born children of citizens, under statutes to be presently referred to], such only as are either born or made so, born within the limits and under the jurisdiction of the United States, or naturalized by the authority of law, either in one of the states before the constitution, or, since that time, by virtue of an act of the congress of the United States.' Page 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.' [169 U.S. 649, 666] Page 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 Am. 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 domicile'; and children born in a foreign country, of a French father who had not established his domicile 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.' Poth. Trait e des Personnes, pt. 1, tit. 2, 1, Nos. 43, 45; Walsh-Serrant v. Walsh-Serrant (1802) 3 Journal du Palais, 384, 8 Merlin, Jurisprudence, 'Domicile' (5th Ed.) 13; Pr efet 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; Cockb. Nat. 13, 14; Hall, Int. 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. [169 U.S. 649, 667] The Code Napoleon of 1807 changed the law of France, and adopted, instead of the rule of country of birth, jus soli, the rule of descent or blood, jus sanguinis, as the leading principle; but an eminent commentator has observed that the framers of that code 'appear not to have wholly freed themselves from the ancient rule of France, or rather, indeed, ancient rule of Europe,-'De la vieille regle francaise, ou plutot meme de la vieille regle europ eenne,'-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 res upon the constitutions, laws, or ordinances of the various countries, and have no important bearing upon the interpretation and effect of the constitution of the United States. The English naturalization act of 33 Vict. (1870) c. 14, and the commissioners' report of 1869, out of which it grew, both bear date since the adoption of the fourteenth amendment of the constitution; and, as observed by Mr. Dicey, that act has not affected the principle by which any person who, whatever the nationality of his parents, is born within the British dominions, acquires British nationality at birth, and is a natural-born British subject. Dicey, Confl. Laws, 741. At the time of the passage of that act, although the tendency on the continent of Europe was to make parentage, rather than birthplace, the criterion of nationality, and citizenship was denied to the native-born children of foreign parents in Germany, Switzerland, Sweden, and Norway, yet it appears still to have been conferred upon such children in Holland, Denmark, and Portugal, and, when claimed under certain specified conditions, in France, Belgium, Spain, Italy, Greece, and Russia. Cockb. Nat. 14-21.

There is, therefore, little ground for the theory that at the time of the adoption of the fourteenth amendment of the constitution of the United States there was any settled and definite rule of international law generally recognized by civilized nations, inconsistent with the ancient rule of citizenship by birth within the dominion. [169 U.S. 649, 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 25 Edw. III. (1350), when parliament passed an act entitled 'A statute for those who are born in parts beyond sea,' by which, after reciting that 'some people be in doubt if the children born in the parts beyond the sea, out of the ligeance of England, should be able to demand any inheritance within the same ligeance, or not, whereof a petition was put [169 U.S. 649, 669] in the parliament' of 17 Edw. III., 'and was not at the same time wholly assented,' it was (1) agreed and affirmed 'that the law of the crown of England is, and always hath been such, that the children of the kings of England, in whatsoever parts they be born, in England or elsewhere, be able and ought to bear the inheritance after the death of their ancestors' ; (2) also agreed that certain persons named, 'which were born beyond the sea, out of the ligeance of England, shall be from henceforth able to have and enjoy their inheritance after the death of their ancestors, in all parts within the ligeance of England, as well as those that should be born within the same ligeance'; (3) and further agreed 'that all children inheritors, which from henceforth shall be born without the ligeance of the king, whose fathers and mothers at the time of their birth be and shall be at the faith and ligeance of the king of England, shall have and enjoy the same benefits and advantages to have and bear the inheritance within the same ligeance, as the other inheritors aforesaid, in time to come; so always, that the mothers of such children do pass the sea by the license and wills of their husbands.' 2 Rot. Parl. 231; 1 Statutes of the Realm, 310.

It has sometimes been suggested that this general provision of the statute of 25 Edw. III. was declaratory of the common law. See Bacon, arguendo, in Calvin's Case, 2 How. St. Tr. 585; Westlake and Pollock, arguendo, in De Geer v. Stone, 22 Ch. Div. 243, 247; 2 Kent, Comm. 50, 53; Lynch v. Clarke, 1 Sandf. Ch. 583, 659, 660; Ludlam v. Ludlam, 26 N. Y. 536. 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 Rich. 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,' etc.,-which, at best, was but obiter dictum, for the chief justice appears to have finally rested his opinion on the statute. The other, a note added to the edition of 1688 of Dyer's Reports, 224a, stating that at Trinity term 7 Edw. III. Rot. 2 B. R., it was adjudged that children of subjects born [169 U.S. 649, 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. Westl. Priv. Int. Law ( 3d Ed.) 324.

The statute of 25 Edw. III. recites the existence of doubts as to the right of foreign-born children to inherit 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, Alienigenae, 14, 20; 2 Am. 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 Coke, 17a, 18a; Co. Litt. 8a, and Hargrave's note 36; 1 Bl. Comm. 373; Barrington, Statutes (5th Ed.) 268; Lord Kenyon, in Doe v. Jones, 4 Term R. 300, 308; Lord Chancellor Cranworth, in Shedden v. Patrick, 1 Macq. 535, 611; Cockb. Nat. 7, 9; De Geer v. Stone, 22 Ch Div. 243, 252; Dicey, Confl. Laws, 178, 741. 'The acquisition,' says Mr. Dicey (page 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. Cockb. Nat. 9. By the [169 U.S. 649, 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 De Geer v. Stone, above cited; Dicey, Confl. 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 while 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 [169 U.S. 649, 672] who are born out of its own territory; but it cannot confer such privileges upon such persons as against the country of their birth, when they voluntarily return to and reside therein. Those born in the territory of a nation are (as a general principle) liable when actually therein to 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, 1873-74, pp. 1237, 1337. See, also, Drummond's Case (1834) 2 Knapp, 295.

By the constitution of the United States, congress was empowered 'to establish an uniform rule of naturalization.' In the exercise of this power, congress, by successive acts, beginning with the act entitled 'An act to establish an uniform rule of naturalization,' passed at the second session of the first congress under the constitution, has made provision for the admission to citizenship of three principal classes of persons: First. Aliens, having resided for a certain time 'within the limits and under the jurisdiction of the United States,' and naturalized individually by proceedings in a court of record. Second. Children of persons so naturalized, 'dwelling within the United States, and being under the age of twenty-one years at the time of such naturalization.' Third. Foreign- born children of American citizens, coming within the definitions prescribed by congress. Acts March 26, 1790, c. 3 (1 Stat. 103); January 26, 1795, c. 20 (Id. 414); June 18, 1798, c. 54 (Id. 566); April 14, 1802, c. 28 (2 Stat. 153); March 26, 1804, c. 47 (Id. 292); February 10, 1855, c. 71 (10 Stat. 604); Rev. St. 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 [169 U.S. 649, 673] resident in the United States.' 1 Stat. 104. In 1795, this was re-enacted, 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.' Id. 415.

In 1802, all former acts were repealed, and the provisions concerning children of citizens were re-enacted 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 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, Comm. 51, 52; West v. West, 8 Paige, 433; U. S. v. Kellar, 11 Biss. 314, 13 Fed. 82; Boyd v. Nebraska, 143 U.S. 135, 177 , 12 S. Sup. Ct. 375.

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, Comm. 52, 53; Binney, Alienigenae, 20, 25; 2 Am. 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 [169 U.S. 649, 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. St. 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 furthest 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, Comm. 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 [169 U.S. 649, 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 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; 15 Stat. 708.

The first section of the fourteenth amendment of the constitution [169 U.S. 649, 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 the 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 Tae y in 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. Slaughter House Cases (1873) 16 Wall. 36, 73; Strauder v. West Virginia (1879) 100 U.S. 303 , 306; Ex parte Virginia (1879) Id. 339, 345; Neal v. Delaware (1880) 103 U.S. 370 , 386; Elk v. Wilkins (1884) 112 U.S. 94, 101 , 5 S. Sup. Ct. 41. 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 Slaughter House Cases, above cited.

In those cases the point adjudged was that a statute of Louisiana, granting to a particular corporation the exclusive right for 25 years to have and maintain slaughter houses 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 slaughter houses 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 [169 U.S. 649, 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. 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.' Id. 73, 74.

Mr. Justice Field, in a dissenting opinion, in which Chief Justice Chase and Justices Swayne and Bradley concurred, said of the same clause: 'It recognizes in express terms, if it does not create, citizens of the United States, and it makes their citizenship dependent upon the place of their birth, or the fact of their adoption, and not upon the constitution or laws of any state or the condition of their ancestry.' 16 Wall. [169 U.S. 649, 678] 95, 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,a ny power to restrict their citizenship to any classes or persons.' Id. 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.' Id. 128, 129.

Mr. Justice Miller, indeed, while discussing the causes which led to the adoption of the fourteenth amendment, made this remark: 'The phrase 'subject to its jurisdiction' was intended to exclude from its operation children of ministers, consuls, and citizens or subjects of foreign states, born within the United States.' 16 Wall. 73. This was wholly aside from the question in judgment, and from the course of reasoning bearing upon that question. It was unsupported by any argument, or by 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 intrusted with authority to represent their sovereign in his intercourse [169 U.S. 649, 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, Comm. 44; Story, Confl. Laws, 48; Wheat. Int. Law (8th Ed.) 249; The Anne (1818) 3 Wheat. 435, 445, 446; Gittings v. Crawford (1838) Taney, 1, 10, Fed. Cas. No. 5,465; In re Baiz (1890) 135 U.S. 403, 424 , 10 S. Sup. Ct. 854.

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, 399.

That neither Mr. Justice Miller, nor any of the justices who took part in the decision of the Slaughter House 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 [169 U.S. 649, 680] parents who were its citizens, became themselves, upon their birth, citizens also. These were natives or natural-born citizens, as distinguished from aliens or foreigners. Some authorities go further, and include as citizens children born within the jurisdiction, without reference to the citizenship of their parents. As to this class there have been doubts, but never as to the first. For the purposes of this case, it is not necessary to solve these doubts. It is sufficient, for everything we have now to consider, that all children, born of citizen parents within the jurisdiction, are themselves citizens.' Minor v. Happersett (1874) 21 Wall. 162, 166-168. The decision in that case was that a woman born of citizen parents within the United States was a citizen of the United States, although not entitled to vote, the right to the elective franchise not being essential to citizenship.

The only adjudication that has been made by this court upon the meaning of the clause 'and subject to the jurisdiction thereof,' in the leading provision of the fourteenth amendment, is Elk v. Wilkins, 112 U.S. 94 , 5 Sup. Ct. 41, 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 [169 U.S. 649, 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, 5 Sup. Ct. 44-46.

Mr. Justice Harian 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 [169 U.S. 649, 682] the territorial limits of the United States, and were not subject to any foreign power.' And that view was supported by reference to the debates in the senate upon that act, and to the ineffectual veto thereof by President Johnson, in which he said: 'By the first section of the bill, all persons born in the United States, and not subject to any foreign power, excluding Indians not taxed, are declared to be citizens of the United States. This provision comprehends the Chinese of the Pacific states, Indians subject to taxation, the people called 'Gypsies,' as well as the entire race designated as blacks, persons of color, negroes, mulattoes, and persons of African blood. Every individual of those races, born in the United States, is, by the bill, made a citizen of the United States.' 112 U.S. 112 -114, 5 Sup. Ct. 51, 52.

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 Coke, 1, 18b; Cockb. Nat. 7; Dicey, Confl. Laws, 177; Inglis v. Sailors' Snug Harbor, 3 Pet. 99, 155; 2 Kent, Comm. 39, 42.

The principles upon which each of those exceptions rests were long ago distinctly stated by this court. [169 U.S. 649, 683] In U. S. 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 lase 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. 254.

In the great case of The Exchange (1812) 7 Cranch. 116, the grounds upon which foreign ministers are, and other aliens are not, exempt from the jurisdiction of this country, were set forth by Chief Justice Marshall in a clear and powerful train of reasoning, of which it will be sufficient, for our present purpose, to give little more than the outlines. The opinion did not touch upon the anomalous case of the Indian tribes, the true relation of which to the United States was not directly brought before this court until some years afterwards, in Cherokee Nation v. Georgia (1831) 5 Pet. 1; nor upon the case of a suspension of the sovereignty of the United States over part of their territory by reason of a hostile occupation, such as was also afterwards presented in U. S. 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 [169 U.S. 649, 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, 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 [169 U.S. 649, 685] manner, she should be exempt from the jurisdiction of the country.' 7 Cranch, 137-139, 147.

As to the immunity of a foreign minister, he said: 'Whatever may be the principle on which this immunity is established, whether we consider him as in the place of the sovereign he represents, or by a political fiction suppose him to be 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 h e considerations that, without such exemption, every sovereign would hazard his own dignity by employing a public minister abroad. His minister would owe temporary and local allegiance to a foreign prince, and would be less competent to the objects of his mission. A sovereign committing the interests of his nation with a foreign power to the care of a person whom he has selected for that purpose cannot intend to subject his minister in any degree to that power; and therefore a consent to receive him implies a consent that he shall possess those privileges which his principal intended he should retain,-privileges which are essential to the dignity of his sovereign, and to the duties he is bound to perform.' 7 Cranch, 138, 139.

The reasons for not allowing to other aliens exemption 'from the jurisdiction of the country in which they are found' were stated as follows: 'When private individuals of one nation spread themselves through another as business or caprice may direct, mingling indiscriminately with the inhabitants of that other, or when merchant vessels enter for the purposes of trade, it would be obviously inconvenient and dangerous to society, and would subject the laws to continual infraction, and the government to degradation, if such individuals or merchants did not owe temporary and local allegiance, and were [169 U.S. 649, 686] not amenable to the jurisdiction of the country. Nor can the foreign sovereign have any motive for wishing such exemption. His subjects thus passing into foreign countries are not employed by him, nor are they engaged in national pursuits. Consequently, there are powerful motives for not exempting persons of this description from the jurisdiction of the country in which they are found, and no one motive for requiring it. The implied license, therefore, under which they enter, can never be construed to grant such exemption.' 7 Cranch, 144.

In short, the judgment in the case of The Exchange declared, as incontrovertible principles, that the jurisdiction of every nation within its own territory is exclusive and absolute, and is susceptible of no limitation not imposed by the nation itself; that all exceptions to its full and absolute territorial jurisdiction must be traced up to its own consent, express or implied; that upon its consent to cede, or to waive the exercise of, a part of its territorial jurisdiction, rest the exemptions from that jurisdiction of foreign sovereigns or their armies entering its territory with its permission, and of their foreign ministers and public ships of war; and that the implied license, under which private individuals of another nation enter the territory and mingle indiscriminately with its inhabitants, for purposes of business or pleasure, can never be construed to grant to them an exemption from the jurisdiction of the country in which they are found. See, also, Carlisle v. U. S. (1872) 16 Wall. 147, 155; Radich v. Hutchins (1877) 95 U.S. 210 ; Wildenhus' Case (1887) 120 U.S. 1 , 7 Sup. Ct. 385; Chae Chan Ping v. U. S . (1889) 130 U.S. 581, 603 , 604 S., 9 Sup. Ct. 623.

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 [169 U.S. 649, 687] to a foreign government. Acts March 26, 1790, c. 3 (1 Stat. 103); January 29, 1795, c. 20, 1 (1 Stat. 414); June 18, 1798, c. 54, 1, 6 (1 Stat. 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. St. 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 Jan. 29, 1795, c. 20, 3 (1 Stat. 415); April 14, 1802, c. 28, 4 ( 2 Stat. 155); February 10, 1855, c. 71 (10 Stat. 604); Rev. St. 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 [169 U.S. 649, 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 or 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 a 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. [169 U.S. 649, 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 (chapter 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 for 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. Litt. 128b), and that every person owes allegiance to the country of his birth' (13 Ops. Attys. Gen. U. S. 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 [169 U.S. 649, 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 article 2, 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 rei ding in other countries, so as to entitle them to all rights of property and of succession within its limits, and also with political privileges and civil rights to be enjoyed or exercised within the territory and jurisdiction of the state thus conferring its citizenship.

'But no sovereignty can extend its jurisdiction beyond its own territorial limits so as to relieve those born under and subject to another jurisdiction, from their obligations or duties thereto; nor can the municipal law of one state interfere with the duties or obligations which its citizens incur while voluntarily resident in such foreign state, and without the jurisdiction of their own country. [169 U.S. 649, 691] 'It is evident from the proviso in the act of February 10, 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 citizens and to subject them to duties to it.

'Such children are born to a double character: the citizenship of the father is that of the child, so far as the laws of the country of which the father is a citizen are concerned, and within the jurisdiction of that country: but the child, from the circumstances of his birth, may acquire rights and owes another fealty besides that which attaches to the father.'

Opinions of the Executive Departments on Expatriation, Naturalization, and Allegiance (1873) 17, 18; U. S. Foreign Relations, 1873-74, pp. 1191, 1192.

In 1886, upon the application of a son born in France of an American citizen, and residing in France, for a passport, Mr. Bayard, the secretary of state, as appears by letters from him to the secretary of legation in Paris, and from the latter to the applicant, quoted and adopted the conclusions of Attorney General Hoar in his opinion above cited. U. S. Foreign Relations, 1886, p. 303; 2 Calvo, Droit International, 546. [169 U.S. 649, 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 English 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 [169 U.S. 649, 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) 58 N. J. Law, 36, 39, 40, 32 Atl. 696.

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 Coke, 6a, 'strong enough to make a natural subject, for, if he hath issue here, that issue is a natural-born subject'; and his child, as said by Mr. Binney in his essay before 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 [169 U.S. 649, 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.' Executive Documents H. R. No. 10, 1st Sess. 32d Cong. p. 4; 6 Webster's Works, 526; U. S. v. Carlisle, 16 Wall. 147, 155; Calvin's Case, 7 Coke, 6a; Ellesmere, Postnati, 63; 1 Hale, P. C. 62; 4 Bl. Comm. 74, 92.

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

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

Chinese persons, born out of the United States, remaining subjects of the emperor of China, and not having become citizens of the United States, are entitled to the protection of and owe allegiance to the United States, so long as they are permitted by the United States to reside here; and are 'subject to the jurisdiction thereof,' in the same sense as all other aliens residing in the United States. Yick Wo v. Hopkins (1886) 118 U.S. 356 , 6 Sup. Ct. 1064; Lau Ow Bew v. U. S. (1892) 144 U.S. 47, 61 , 62 S., 12 Sup. Ct. 517; Fong Yue Ting v. U. S. (1893) 149 U.S. 698, 724 , 13 S. Sup. Ct. 1016; Lem Moon Sing v. U. S. (1895) 158 U.S. 538, 547 , 15 S. Sup. Ct. 967; Wong Wing v. U. S. (1896) 163 U.S. 228, 238 , 16 S. Sup. Ct. 977.

In Yick Wo v. Hopkins, the decision was that an ordinance [169 U.S. 649, 695] of the city of San Francisco, regulating a certain business, and which, as executed by the board of supervisors, made an arbitrary discrimination between natives of China, still subjects of the emperor of China, but domiciled in the United States, and all other persons, was contrary to the fourteenth amendment of the constitution. Mr. Justice Matthews, in delivering the opinion of the court, said: 'The rights of the petitioners, as affected by the proceedings of which they complain, are not less because they are aliens and subjects of the emperor of China.' 'The fourteenth amendment to the constitution is not confined to the protection of citizens. It says, 'Nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.' These provisions are universal in their application to all persons within the territorial jurisdiction, without regard to any differences of race, of color, or of nationality; and the equal protection of the laws is a pledge of the protection of equal laws. It is accordingly enacted by section 1977 of the Revised Statutes that 'all persons within the jurisdiction of the United States shall have the same right in every state and territory to make and enforce contracts, to sue, be parties, give evidence, and to the full and equal benefit of all laws and proceedings for the security of persons and property, as is enjoyed by white citizens, and shall be subject to like punishment, pains, penalties, taxes, licenses, and exactions of every kind, and to no other.' The questions we have to consider and decide in these cases, therefore, are to be treated as involving the rights of every citizen of the United States, equally with those of the strangers and aliens who now invoke the jurisdiction of this court.' 118 U.S. 368, 369 , 6 S. Sup. Ct. 1070.

The manner in which reference was made in the passage above quoted to section 1977 of the Revised Statutes shows that the change of phrase in that section, re-enacting section 16 of the statute of May 31, 1870, c. 114 (16 Stat. 144), as compared with section 1 of the civil rights act of 1866, by substituting, for the words in that act, 'of every race and color,' the words, 'within the jurisdiction of the United States,' was not [169 U.S. 649, 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 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. U. S. (1891) 140 U.S. 417 , 11 Sup. Ct. 733, 851, 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 [169 U.S. 649, 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. 419, 423 , 11 S. Sup. Ct. 851.

In State v. Ah Chew (188) 16 Nev. 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 Sawy. 353, 2 Fed. 905; Ex parte Chin King (1888) 13 Sawy. 333, 35 Fed. 354; In re Yung Sing Hee (1888) 13 Sawy. 482, 36 Fed. 437; In re Wy Shing ( 1888), 13 Sawy. 530, 36 Fed. 553; Gee Fook Sing v. U. S. (1892), 7 U. S. App. 27, 1 C. C. A. 211, and 49 Fed. 146; In re Wong Kim Ark (1896) 71 Fed. 382. And we are not aware of any judicial decision to the contrary.

During the debates in the senate in January and February, 1866, upon the civil rights bill, Mr. Trumbull, the chairman of the committee which reported the bill, moved to amend the first sentence thereof so as to read: 'All persons born in the United States, and not subject to any foreign power, are hereby declared to be citizens of the United States, without distinction of color.' Mr. Cowan, of Pennsylvania, asked 'whether it will not have the effect of naturalizing the children of Chinese and Gypsies, born in this country?' Mr. Trumbull answered, 'Undoubtedly;' and asked, 'Is not the child born in this country of German parents a citizen?' Mr. Cowan replied, 'The children of German parents are citizens; but Germans are not Chinese.' Mr. Trumbull rejoined, 'The law makes no such distinction, and the child of an Asiatic is just as much a citizen as the child of a European.' Mr. Reverdy Johnson suggested that the words, 'without distinction of color,' should be omitted as unnecessary; and said: 'The amendment, as it stands, is that all persons born in the United States, and not subject to a foreign power, shall, by virtue of birth, be citizens. To that I am willing to consent; [169 U.S. 649, 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. Cong. Globe, 39th Cong. 1st Sess. pt. 1, pp. 498, 573, 574.

The fourteenth amendment of the constitution, as originally framed by the house of representatives, lacked the opening sentence. When it came before the senate in May, 1866, Mr. Howard, of Michigan, moved to amend by prefixing the sentence in its present form (less the words 'or naturalized'), and reading: 'All persons born in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside.' Mr. Cowan objected, upon the ground that the Mongolian race ought to be excluded, and said, 'Is the child of the Chinese immigrant in California a citizen?' 'I do not know how my honorable friend from California looks upon Chinese, but I do know how some of his fellow citizens regard them. I have no doubt that now they are useful, and I have no doubt that within proper restraints, allowing that state and the other Pacific states to manage them as they may see fit, they may be useful; but I would not tie their hands by the constitution mgone from the country, and is beyond its jurisdiction 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 [169 U.S. 649, 699] the United States to be entitled to civil rights and to equal protection before the law with others.' Cong. Globe, 39th Cong. 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 14 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. Ad 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 domicile 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. U. S., 130 U.S. 581 , 9 Sup. Ct. 623; Nishimura Ekiu v. U. S., 142 U.S. 651 , 12 Sup. Ct. 336; Fong Yue Ting v. U. S., 149 U.S. 698 , 13 Sup. Ct. 1016; Lem Moon Sing v. U. S., 158 U.S. 538 , 15 Sup. Ct. 967; Wong Wing v. U. S., 163 U.S. 228 , 16 Sup. Ct. 977.

In Fong Yue Ting v. U. S., 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 [169 U.S. 649, 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 rests upon one foundation, are derived from one source, are supported by the same reasons, and are in truth but parts of one and the same power; and therefore that the power of congress to expel, like the power to exclude aliens, or any specified class of aliens, from the country, may be exercised entirely through executive officers; or congress may call in the aid of the judiciary to ascertain any contested facts on which an alien's right to be in the country has been made by congress to depend. 149 U.S. 711, 713 , 714 S., 13 Sup. Ct. 1016.

In Lem Moon Sing v. U. S., the same principles were reaffirmed, and were applied to a Chinese person, born in China, who had acquired a commercial domicile 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 re-enter 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 re-enter the United States after a visit to his native land, was expressed by the court as follows: 'He is none the less an alien, because of his having a commercial domicile 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 [169 U.S. 649, 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 re-enter the United States in violation of the will of the government as expressed in enactments of the law-making power.' 158 U.S. 547, 548 , 15 S. Sup. Ct. 971.

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,a 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 one but 'free white persons.' Acts March 26, 1790, c. 3, and Jan. 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.' Id . 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 Feb. [169 U.S. 649, 702] 18, 1875, c. 80, by inserting the words above printed in brackets. Rev. St . (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 Sawy. 155, Fed. Cas. No. 104. 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. U. S. (1893), above cited, this court said: 'Chinese persons not born in this country have never been recognized as citizens of the United States, nor authorized to become such under the naturalization laws.' 149 U.S. 716 , 13 Sup. Ct. 1023.

The convention between the United States and China of 1894 provided that 'Chinese laborers or Chinese of any other class, either permanently or temporarily residing in the United States, shall have for the protection of their persons and property all rights that are given by the laws of the United States to citizens of the most favored nation, excepting the right to become naturalized citizens.' 28 Stat. 1211. And it has since been decided, by the same judge who held this appellee to be a citizen of the United States by virtue of his birth therein, that a native of China of the Mongolian race could not be admitted to citizenship under the naturalization laws. In re Gee Hop (1895) 71 Fed. 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 [169 U.S. 649, 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. Bank, 9 Wheat. 738, 827. Congress having no power to abridge the rights conferred by the constitution upon those who have become naturalized citizens by virtue of acts of congress, a fortiori no act or omission of congress, as to providing for the naturalization of parents or children of a particular race, can affect citizenship acquired as a birthright, by virtue of the constitution itself, without any aid of legislation. The fourteenth amendment, while it leaves the power, where it was before, in congress, to regulate naturalization, has conferred no authority upon congress to restrict the effect of birth, declared by the constitution to constitute a sufficient and complete right to citizenship.

No one doubts that the amendment, as soon as it was promulgated, applied to persons of African descent born in the United States, wherever the birthplace of their parents might have been; and yet, for two years afterwards, there was no statute authorizing persons of that race to be naturalized. If the omission or the refusal of congress to permit certain [169 U.S. 649, 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. St. 1999, re-enacting Act July 27, 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 17 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 [169 U.S. 649, 705] for him, ever renounced his allegiance to the United States, and that he has never done or committed any act or thing to exclude him therefrom.'

The evident intention, and the necessary effect, of the submission of this case to the decision of the court upon the facts agreed by the parties, were to present for determination the single question, stated at the beginning of this opinion, namely, whether a child born in the United States, of parents of Chinese descent, who, at the time of his birth, are subjects of the emperor of China, but have a permanent domicile 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.

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

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 [169 U.S. 649, 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 the 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 28, 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 o reign 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.' Cockb. Nat. 7.

The tie which bound the child to the crown was indissoluble. [169 U.S. 649, 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, Foreign Jur. 15.

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 liege men 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 canceled 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. 248, said that the incapacities of femes [169 U.S. 649, 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 Nations, 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.' Volume 1, p. 231.

Before the Revolution, the views 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 herefore 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.' Vatt. Law Nat. bk. 1, 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, [169 U.S. 649, 709] Bar, who says: 'To what nation a person belongs is by the laws of all nations closely dependent on descent. It is almost a 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 13 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. Peters, 8 Pet. 591, 658. [169 U.S. 649, 710] As to the jura coronae, 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 rule making 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.

As Chief Justice Taney observed in Fleming v. Page, 9 How. 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 (Lawr. Wheat. Int. Law, 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 a 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 [169 U.S. 649, 711] the American commentator on Blackstone. 1 Tuck. Bl. Comm. pt. 2, p. 96, Append.'

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 (1 Stat. 414, c. 20), 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.

St. 3 Jac. I. c. 4, provided that promising obedience [169 U.S. 649, 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, devest 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 Am. St. Papers, 149. And see Fitch v. Wee r, 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 Atty. Gen. Cushing (8 Ops. 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 the right of any 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 our states, and affirmed 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. [169 U.S. 649, 713] Ainslie v. Martin (1813) 9 Mass. 454, 460; Murray v. McCarty (1811) 2 Munf. 393; Alsberry v. Hawkins (1839) 9 Dana, 177,-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 Alsberry 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, Atty. Gen. Black thus advised the president (9 Ops. Attys. Gen. 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 opinion. 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, 1868 (15 Stat. 223, c. 249), carried forward into sections 1999 and 2000 of the Revised Statutes, in 1874. [169 U.S. 649, 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 2172 provides that such children shall 'be considered as citizens thereof.'

The language of the statute of 7 Anne 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 acts of congress which recognized them as natural born, then those born since the fourteenth amendment are not citizens at all [169 U.S. 649, 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 2 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 7th 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. 192.

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 1 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 3, that 'no person shall be a senator who shall not have attained to the age of thirty years, and been nine yer a citizen of the United States, and who shall not, when elected, be an inhabitant of that state for which he shall be chosen.' [169 U.S. 649, 716] At that time the theory largely obtained, as stated by Mr. Justice Story, in his Commentaries on the Constitution (section 1693), 'that every citizen of a state is ipso facto a citizen of the United States.'

Mr. Justice Curtis, in Dred Scott v. Sandford, 19 How. 577, 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.' [169 U.S. 649, 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 the 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 any one it thinks proper,o r 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 a 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 [169 U.S. 649, 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 the 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 domicile 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. 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 (section 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 (page 279), 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 [169 U.S. 649, 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 [169 U.S. 649, 720] not taxed, are hereby declared to be citizens of the United States.' And this was re-enacted 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 at their birth, as the permanent allegiance [169 U.S. 649, 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 [169 U.S. 649, 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. 101 , 5 Sup. Ct. 41; 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. Confl. Laws, 10-12.

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 [169 U.S. 649, 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 of domicile.

The fourteenth amendment came before the court in the Slaughter-House Cases, 16 Wall. 36, 73, at December term, 1872,-the cases having been brought up by writ of error in May, 1870 (10 Wall. 273); 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. [169 U.S. 649, 724] Mr. Justice Field dissented from the judgment of the court, and subsequently, in the case of Look Tin Sing, 10 Sawy. 353, 21 Fed. 905, 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 following 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 Slaughter-House Cases, particularly as Chief Justice Waite, in Minor v. Happersett, 21 Wall. 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. 101 , 5 Sup. Ct. 41, 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 (Slaughter-House Cases, 16 Wall. 36, 73; Strauder v. West Virginia, 100 U.S. 303 , 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 [169 U.S. 649, 725] to the time of naturalization in the other. Persons not thus 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 its 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. 2 And, [169 U.S. 649, 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. 717 , 13 Sup. Ct. 1016. 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 any steps towards becoming citizens of a country is as absolute and unqualified as the right to prohibit and prevent their entrance into the county. 149 U.S. 707 , 13 Sup. Ct. 1016.

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 [169 U.S. 649, 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 Slaughter-House 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 (sections 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 possesses a right to his allegiance; he is still an integral part of the national community. A state, therefore, can enact laws [169 U.S. 649, 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 bad 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 [169 U.S. 649, 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 a 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 [169 U.S. 649, 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 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 23, 1869, and the proclamation made February 5, 8 70, 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 [169 U.S. 649, 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. Whart. Confl. Laws, 12.

In Fong Yue Ting v. U. S., 149 U.S. 698, 717 , 13 S. Sup. Ct. 1023, 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 form 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, [169 U.S. 649, 732] I am of opinion that the president and senate by treaty, and the congress by legislation, 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 Kim 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. Footnotes

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

[ Footnote 2 ] 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 offense, 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 slaves to the great officers of state. . . . The parents, grandparents, brothers, and grand-

children of such criminals, whether habitually living with them under the same roof or not, shall be perpetually banished to the distance of 2,000 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 magistrate, shall be punished with 100 blows and banished perpetually to the distance of 3,000 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 3,000 lee. . . .' Staunton's Pen. Code China, 272, 255.

[ top matter omitted ]

An Act to establish a Bureau of Immigration and Naturalization, and to provide for a uniform rule for the naturalization of aliens throughout the United States.

Be is enacted . . . , That the designation of the Bureau of Immigration in the Department of Commerce and Labor is hereby changed to the "Bureau of Immigration and Naturalization," which said Bureau, under the direction and control of the Secretary of Commerce and Labor, in addition to the duties now provided by law, shall have charge of all matters concerning the naturalization of aliens. . . .

SEC. 3. That exclusive jurisdiction to naturalize aliens as citizens of the United States is hereby conferred upon the following specified courts:

United States circuit and district courts now existing, or which may hereafter be established by Congress in any State, United States district courts for the Territories of Arizona, New Mexico, Oklahoma, Hawaii, and Alaska, the supreme court of the District of Columbia, and the United States courts for the Indian Territory; also all courts of record in any State or Territory now existing, or which may hereafter be created, having a seal, a clerk, and jurisdiction in actions at law or equity, or law and equity, in which the amount in controversy is unlimited. . . .

SEC. 4. That an alien may be admitted to become a citizen of the United States in the following manner and not otherwise:

First. He shall declare on oath before the clerk of any court authorized by this Act to naturalize aliens, or his authorized deputy, in the district in which such alien resides, two years at least prior to his admission, and after he has reached the age of eighteen years, that it is bona fide his intention to become a citizen of the United States, and to renounce forever all allegiance and fidelity to any foreign prince, potentate, state, or sovereignty, and particularly, by name, to the prince, potentate, state, or sovereignty of which the alien may be at the time a citizen or subject. . . .

Second. Not less than two years nor more than seven years after he has made such declaration of intention he shall make and file, in duplicate, a petition in writing, signed by the applicant in his own hand-writing and duly verified, in which petition such applicant shall state his full name, his place of residence (by street and number, if possible), his occupation, and, if possible, the date and place of his birth; the place from which he emigrated, and the date and place of his arrival in the United States, and, if he entered through a port, the name of the vessel on which he arrived; the time when and the place and name of the court where he declared his intention to become a citizen of the United States; if he is married he shall state the name of his wife and, if possible, the country of her nativity and her place of residence at the time of filing his petition; and if he has children, the name, date, and place of birth and place of residence of each child living at the time of the filing of his petition.

The petition shall set forth that he is not a disbeliever in or opposed to organized government, or a member of or affiliated with any organization or body of persons teaching disbelief in or opposed to organized government, a polygamist or believer in the practice of polygamy, and that it is his intention to become a citizen of the United States and to renounce absolutely and forever all allegiance and fidelity to any foreign prince, potentate, state, or sovereignty, and particularly by name to the prince, potentate, state, or sovereignty of which he at the time of filing of his petition may be a citizen or subject, and that it is his intention to reside permanently within the United States, and whether or not he has been denied admission as a citizen of the United States, and, if denied, the ground or grounds of such denial, the court or courts in which such decision was rendered, and that the cause for such denial has since been cured or removed, and every fact material to his naturalization and required to be proved upon the final hearing of his application.

The petition shall also be verified by the affidavits of at least two credible witnesses, who are citizens of the United States, and who shall state in their affidavits that they have personally known the applicant to be a resident of the United States for a period of at least five years continuously, and of the State, Territory, or district in which the application is made for a period of at least one year immediately preceding the date of the filing of his petition, and that they each have personal knowledge that the petitioner is a person of good moral character, and that he is in every way qualified, in their opinion, to be admitted as a citizen of the United States. . . .

Third. He shall, before he is admitted to citizenship, declare on oath in open court that he will support the Constitution of the United States, and that he absolutely and entirely renounces and abjures all allegiance and fidelity to any foreign prince, potentate, state, or sovereignty, and particularly by name to the prince, potentate, state, or sovereignty of which he was before a citizen or subject; that he will support and defend the Constitution and laws of the United States against all enemies, foreign and domestic, and bear true faith and allegiance to the same.

Fourth. It shall be made to appear to the satisfaction of the court admitting any alien to citizenship that immediately preceding the date of his application he has resided continuously within the United States five years at least, and within the State or Territory where such court is at the time held one year at least, and that during that time he has behaved as a man of good moral character, attached to the principles of the Constitution of the United States, and well disposed to the good order and happiness of the same. In addition to the oath of the applicant, the testimony of at least two witnesses, citizens of the United States, as to the facts of residence, moral character, and attachment to the principles of the Constitution shall be required, and the name, place of residence, and occupation of each witness shall be set forth in the record.

Fifth. In case the alien applying to be admitted to citizenship has borne any hereditary title, or has been of any of the orders of nobility in the kingdom or state from which he came, he shall, in addition to the above requisites, make an express renunciation of his title or order of nobility in the court to which his application is made, and his renunciation shall be recorded in the court.

Sixth. When any alien who has declared his intention to become a citizen of the United States dies before he is actually naturalized the widow and minor children of such alien may, by complying with the other provisions of this Act, be naturalized without making any declaration of intention.

SEC. 5. [Public notice of petition, etc., to be given.]

SEC. 6. That petitions for naturalization may be made and filed during term time or vacation of the court and shall be docketed the same day as filed, but final action thereon shall be had only on stated days, to be fixed by rule of the court, and in no case shall final action be had upon a petition until at least ninety days have elapsed after filing and posting the notice of such petition: Provided, That no person shall be naturalized nor shall any certificate of naturalization be issued by any court within thirty days preceding the holding of any general election within its territorial jurisdiction. . . .

SEC. 7. That no person who disbelieves in or who is opposed to organized government, or who is a member of or affiliated with any organization entertaining and teaching such disbelief in or opposition to organized government, or who advocates or teaches the duty, necessity, or propriety of the unlawful assaulting or killing of any officer or officers, either of specific individuals or of officers generally, of the Government of the United States, or of any other organized government, because of his or their official character, or who is a polygamist, shall be naturalized or be made a citizen of the United States.

SEC. 8. That no alien shall hereafter be naturalized or admitted as a citizen of the United States who can not speak the English language: Provided, That this requirement shall not apply to aliens who are physically unable to comply therewith, if they are otherwise qualified to become citizens of the United States: And provided further, That the requirements of this section shall not apply to any alien who has prior to the passage of this Act declared his intention to become a citizen of the United States in conformity with the law in force at the date of making such declaration: Provided further, That the requirements of section eight shall not apply to aliens who shall hereafter declare their intention to become citizens and who shall make homestead entries upon the public lands of the United States and comply in all respects with the laws providing for homestead entries on such lands.

SEC. 15. . . . If any alien who shall have secured a certificate of citizenship under the provisions of this Act shall, within five years after the issuance of such certificate, return to the country of his nativity, or go to any other foreign country and take permanent residence therein, it shall be considered prima facie evidence of a lack of intention on the part of such alien to become a permanent citizen of the United States at the time of filing his application for citizenship, and, in the absence of countervailing evidence, it shall be sufficient in the proper proceeding to authorize the cancellation of his certificate of citizenship as fraudulent, and the diplomatic and consular officers of the United States in foreign countries shall from time to time, through the Department of State, furnish the Department of Justice with the names of those within their respective jurisdictions who have such certificates of citizenship and who have taken permanent residence in the country of their nativity, or in any other foreign country, and such statements, duly certified, shall be admissible in evidence in all courts in proceedings to cancel certificates of citizenship. . . .

SEC. 23. That any person who knowingly procures naturalization in violation of the provisions of this Act shall be fined not more than five thousand dollars, or shall be imprisoned not more than five years, or both, and upon conviction the court in which such conviction is had shall thereupon adjudge and declare the final order admitting such person to citizenship void. Jurisdiction is hereby conferred on the courts having jurisdiction of the trial of such offense to make such adjudication. Any person who knowingly aids, advises, or encourages any person not entitled thereto to apply for or to secure naturalization, or to file the preliminary papers declaring an intent to become a citizen of the United States, or who in any naturalization proceeding knowingly procures or gives false testimony as to any material fact, or who knowingly makes an affidavit false as to any material fact required to be proved in such proceeding, shall be fined not more than five thousand dollars, or imprisoned not more than five years, or both.

Approved, June 20, I906.

U.S. Supreme Court
TAKAO OZAWA v. U S, 260 U.S. 178 (1922)

260 U.S. 178

TAKAO OZAWA
v.
UNITED STATES.

No. 1.
Argued Oct. 3 and 4, 1922.
Decided Nov. 13, 1922.

Messrs. Geo. W. Wickersham, of New York City, and David L. Withington, of Honolulu, T. H., for Takao Ozawa.

[260 U.S. 178, 186] Mr. Solicitor General Beck, of Washington, D. C., for the United States.

[260 U.S. 178, 189]

Mr. Justice SUTHERLAND delivered the opinion of the Court.

The appellant is a person of the Japanese race born in Japan. He applied, on October 16, 1914, to the United States District Court for the Territory of Hawaii to be admitted as a citizen of the United States. His petition was opposed by the United States District Attorney for the District of Hawaii. Including the period of his residence in Hawaii appellant had continuously resided in the United States for 20 years. He was a graduate of the Berkeley, Cal., high school, had been nearly three years a student in the University of California, had educated his children in American schools, his family had attended American churches and he had maintained the use of the English language in his home. That he was well qualified by character and education for citizenship is conceded.

The District Court of Hawaii, however, held that, having been born in Japan and being of the Japanese race, [260 U.S. 178, 190] he was not eligible to naturalization under section 2169 of the Revised Statutes (Comp. St. 4358), and denied the petition. Thereupon the appellant brought the cause to the Circuit Court of Appeals for the Ninth Circuit and that court has certified the following questions, upon which it desires to be instructed:

'1. Is the act of June 29, 1906 (34 Stats. at Large, pt. 1, p. 596), providing 'for a uniform rule for the naturalization of aliens' complete in itself, or is it limited by section 2169 of the Revised Statutes of the United States?

'2. Is one who is of the Japanese race and born in Japan eligible to citizenship under the naturalization laws?

'3. If said act of June 29, 1906, is limited by section 2169 and naturalization is limited to aliens being free white persons and to aliens of African nativity and to persons of African descent, is one of the Japanese race, born in Japan, under any circumstances eligible to naturalization?'

These questions for purposes of discussion may be briefly restated:

1. Is the Naturalization Act of June 29, 1906 (Comp. St. 4351 et seq.), limited by the provisions of section 2169 of the Revised Statutes of the United States?

2. If so limited, is the appellant eligible to naturalization under that section?

First. Section 2169 is found in title XXX of the Revised Statutes, under the heading 'Naturalization,' and reads as follows:

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

The act of June 29, 1906, entitled 'An act to establish a Bureau of Immigration and Naturalization, and to provide for a uniform rule for the naturalization of aliens [260 U.S. 178, 191] throughout the United States,' consists of 31 sections and deals primarily with the subject of procedure. There is nothing in the circumstances leading up to or accompanying the passage of the act which suggests that any modification of section 2169, or of its application, was contemplated.

The report of the House Committee on Naturalization and Immigration, recommending its passage, contains this statement:

'It is the opinion of your committee that the frauds and crimes which have been committed in regard to naturalization have resulted more from a lack of any uniform system of procedure in such matters than from any radical defect in the fundamental principles of existing law governing in such matters. The two changes which the committee has recommended in the principles controlling in naturalization matters and which are embodied in the bill submitted herewith are as follows: First, the requirement that before an alien can be naturalized he must be able to read, either in his own language or in the English language and to speak or understand the English language; and, second, that the alien must intend to reside permanently in the United States before he shall be entitled to naturalization.'

This seems to make it quite clear that no change of the fundamental character here involved was in mind.

Section 26 of the Act (Comp. St. 4381) expressly repeals sections 2165, 2167, 2168, 2173 of title XXX, the subject-matter thereof being covered by new provisions. The sections of title XXX remaining without repeal are: Section 2166, relating to honorably discharged soldiers; section 2169 (Comp. St. 4358), now under consideration; section 2170 ( section 4360), requiring five years' residence prior to admission; section 2171 (section 4352 [260 U.S. 178, 11] ), forbidding the admission of alien enemies; section 2172 (section 4367), relating to the status of children of naturalized persons; and section 2174 (section 4352 [260 U.S. 178, 8] ), making special provision in respect of the naturalization of seamen.

[260 U.S. 178, 192] There is nothing in section 2169 which is repugnant to anything in the act of 1906. Both may stand and be given effect. It is clear, therefore, that there is no repeal by implication.

But it is insisted by appellant that section 2169, by its terms is made applicable only to the provisions of title XXX, and that it will not admit of being construed as a restriction upon the act of 1906. Since section 2169, it is in effect argued, declares that 'the provisions of this title shall apply to aliens being free white persons, . . .' it should be confined to the classes provided for in the unrepealed sections of that title, leaving the act of 1906 to govern in respect of all other aliens, without any restriction except such as may be imposed by that act itself.

It is contended that, thus construed, the act of 1906 confers the privilege of naturalization without limitation as to race, since the general introductory words of section 4 (Comp. St. 4352) are:

'That an alien may be admitted to become a citizen of the United States in the following manner, and not otherwise.'

But, obviously, this clause does not relate to the subject of eligibility but to the 'manner,' that is, the procedure, to be followed. Exactly the same words are used to introduce the similar provisions contained in section 2165 of the Revised Statutes. In 1790 the first naturalization act provided that --

'Any alien being a free white person . . . may be admitted to become a citizen. . . .' 1 Stat. 103, c. 3.

This was subsequently enlarged to include aliens of African nativity and persons of African descent. These provisions were restated in the Revised Statutes, so that section 2165 included only the procedural portion, while the substantive parts were carried into a separate section ( 2169) and the words 'An alien' substituted for the words 'Any alien.'

In all of the naturalization acts from 1790 to 1906 the privilege of naturalization was confined to white persons [260 U.S. 178, 193] (with the addition in 1870 of those of African nativity and descent), although the exact wording of the various statutes was not always the same. If Congress in 1906 desired to alter a rule so well and so long established it may be assumed that its purpose would have been definitely disclosed and its legislation to that end put in unmistakable terms.

The argument that, because section 2169 is in terms made applicable only to the title in which it is found, it should now be confined to the unrepealed sections of that title, is not convincing. The persons entitled to naturalization under these unrepealed sections include only honorably discharged soldiers and seamen who have served three years on board an American vessel, both of whom were entitled from the beginning to admission on more generous terms than were accorded to other aliens. It is not conceivable that Congress would deliberately have allowed the racial limitation to continue as to soldiers and seamen to whom the statute had accorded an especially favored status, and have removed it as to all other aliens. Such a construction cannot be adopted unless it be unavoidable.

The division of the Revised Statutes into titles and chapters is chiefly a matter of convenience, and reference to a given title or chapter is simply a ready method of identifying the particular provisions which are meant. The provisions of title XXX affected by the limitation of section 2169, originally embraced the whole subject of naturalization of aliens. The generality of the words in section 2165, 'An alien may be admitted, . . .' was restricted by section 2169 in common with the other provisions of the title. The words 'this title' were used for the purpose of identifying that provision (and others), but it was the provision which was restricted. That provision having been amended and carried into the act of 1906, section 2169 being left intact and unrepealed, it will require some thing [260 U.S. 178, 194] more persuasive than a narrowly literal reading of the identifying words 'this title' to justify the conclusion that Congress intended the restriction to be no longer applicable to the provision.

It is the duty of this Court to give effect to the intent of Congress. Primarily this intent is ascertained by giving the words their natural significance, but if this leads to an unreasonable result plainly at variance with the policy of the legislation as a whole, we must examine the matter further. We may then look to the reason of the enactment and inquire into its antecedent history and give it effect in accordance with its design and purpose, sacrificing, if necessary, the literal meaning in order that the purpose may not fail. See Church of the Holy Trinity v. United States, 143 U.S. 457 , 12 Sup. Ct. 511; Heydenfeldt v. Daney Gold, etc., Co., 93 U.S. 634 , 638. We are asked to conclude that Congress, without the consideration or recommendation of any committee, without a suggestion as to the effect, or a word of debate as to the desirability, of so fundamental a change, nevertheless, by failing to alter the identifying words of section 2169, which section we may assume was continued for some serious purpose, has radically modified a statute always theretofore maintained and considered as of great importance. It is inconceivable that a rule in force from the beginning of the government, a part of our history as well as our law, welded into the structure of our national polity by a century of legislative and administrative acts and judicial decisions, would have been deprived of its force in such dubious and casual fashion. We are, therefore, constrained to hold that the act of 1906 is limited by the provisions of section 2169 of the Revised Statutes.

Second. This brings us to inquire whether, under section 2169, the appellant is eligible to naturalization. The language of the naturalization laws from 1790 to 1870 had been uniformly such as to deny the privilege of [260 U.S. 178, 195] naturalization to an alien unless he came within the description 'free white person.' By section 7 of the act of July 14, 1870 (16 Stat. 254, 256 [ Comp. St. 4358]), the naturalization laws were 'extended to aliens of African nativity and to persons of African descent.' Section 2169 of the Revised Statutes, as already pointed out, restricts the privilege to the same classes of persons, viz. 'to aliens [being free white persons, and to aliens] of African nativity and to persons of African descent.' It is true that in the first edition of the Revised Statutes of 1873 the words in brackets, 'being free white persons, and to aliens' were omitted, but this was clearly an error of the compilers and was corrected by the subsequent legislation of 1875 (18 Stat. 316, 318). Is appellant, therefore, a 'free white person,' within the meaning of that phrase as found in the statute?

On behalf of the appellant it is urged that we should give to this phrase the meaning which it had in the minds of its original framers in 1790 and that it was employed by them for the sole purpose of excluding the black or African race and the Indians then inhabiting this country. It may be true that those two races were alone thought of as being excluded, but to say that they were the only ones within the intent of the statute would be to ignore the affirmative form of the legislation. The provision is not that Negroes and Indians shall be excluded, but it is, in effect, that only free white persons shall be included. The intention was to confer the privilege of citizenship upon that class of persons whom the fathers knew as white, and to deny it to all who could not be so classified. It is not enough to say that the framers did not have in mind the brown or yellow races of Asia. It is necessary to go farther and be able to say that had these particular races been suggested the language of the act would have been so varied as to include them within its privileges. As said by Chief Justice Marshall in Dartmouth College [260 U.S. 178, 196] v. Woodward, 4 Wheat. 518, 644 (4 L. Ed. 629), in deciding a question of constitutional construction:

'It is not enough to say that this particular case was not in the mind of the convention, when the article was framed, nor of the American people, when it was adopted. It is necessary to go farther, and to say that, had this particular case been suggested, the language would have been so varied, as to exclude it, or it would have been made a special exception. The case, being within the words of the rule, must be within its operation likewise, unless there be something in the literal construction so obviously absurd, or mischievous, or repugnant to the general spirit of the instrument, as to justify those who expound the Constitution in making it an exception.'

If it be assumed that the opinion of the framers was that the only persons who would fall outside the designation 'white' were Negroes and Indians, this would go no farther than to demonstrate their lack of sufficient information to enable them to foresee precisely who would be excluded by that term in the subsequent administration of the statute. It is not important in construing their words to consider the extent of their ethnological knowledge or whether they thought that under the statute the only persons who would be denied naturalization would be Negroes and Indians. It is sufficient to ascertain whom they intended to include and having ascertained that it follows, as a necessary corollary, that all others are to be excluded,

The question then is: Who are comprehended within the phrase 'free white persons'? Undoubtedly the word 'free' was originally used in recognition of the fact that slavery then existed and that some white persons occupied that status. The word, however, has long since ceased to have any practical significance and may now be disregarded.

We have been furnished with elaborate briefs in which the meaning of the words 'white person' is discussed [260 U.S. 178, 197] with ability and at length, both from the standpoint of judicial decision and from that of the science of ethnology. It does not seem to us necessary, however, to follow counsel in their extensive researches in these fields. It is sufficient to note the fact that these decisions are, in substance, to the effect that the words import a racial and not an individual test, and with this conclusion, fortified as it is by reason and authority, we entirely agree. Manifestly the test afforded by the mere color of the skin of each individual is impracticable, as that differs greatly among persons of the same race, even among Anglo-Saxons, ranging by imperceptible gradations from the fair blond to the swarthy brunette, the latter being darker than many of the lighter hued persons of the brown or yellow races. Hence to adopt the color test alone would result in a confused overlapping of races and a gradual merging of one into the other, without any practical line of separation. Beginning with the decision of Circuit Judge Sawyer, in Re Ah Yup, 5 Sawy. 155, Fed. Cas. No. 104 (1878), the federal and state courts, in an almost unbroken line, have held that the words 'white person' were meant to indicate only a person of what is popularly known as the Caucasian race. Among these decisions, see, for example: In re Camille (C. C.) 6 Fed. 256; In re Saito (C. C.) 62 Fed. 126; In re Nian, 6 Utah, 259, 21 Pac. 993, 4 L. R. A. 726; In re Kumagai (D. C.) 163 Fed. 922; In re Yamashita, 30 Wash. 234, 237, 70 Pac. 482, 94 Am. St. Rep. 860; In re Ellis (D. C.) 179 Fed. 1002; In re Mozumdar (D. C.) 207 Fed. 115, 117; In re Singh (D. C.) 257 Fed. 209, 211, 212; and In re Charr ( D. C.) 273 Fed. 207. With the conclusion reached in these several decisions we see no reason to differ. Moreover, that conclusion has become so well established by judicial and executive concurrence and legislative acquiescence that we should not at this late day feel at liberty to disturb it, in the absence of reasons far more cogent than any that have been suggested. United States v. Midwest Oil Co., 236 U.S. 459, 472 , 35 S. Sup. Ct. 309. [260 U.S. 178, 198] The determination that the words 'white person' are synonymous with the words 'a person of the Caucasian race' simplifies the problem, although it does not entirely dispose of it. Controversies have arisen and will no doubt arise again in respect of the proper classification of individuals in border line cases. The effect of the conclusion that the words 'white person' means a Caucasian is not to establish a sharp line of demarcation between those who are entitled and those who are not entitled to naturalization, but rather a zone of more or less debatable ground outside of which, upon the one hand, are those clearly eligible, and outside of which, upon the other hand, are those clearly ineligible for citizenship. Individual cases falling within this zone must be determined as they arise from time to time by what this court has called, in another connection (Davidson v. New Orleans, 96 U.S. 97 , 104), 'the gradual process of judicial inclusion and exclusion.'

The appellant, in the case now under consideration, however, is clearly of a race which is not Caucasian and therefore belongs entirely outside the zone on the negative side. A large number of the federal and state courts have so decided and we find no reported case definitely to the contrary. These decisions are sustained by numerous scientific authorities, which we do not deem it necessary to review. We think these decisions are right and so hold.

The briefs filed on behalf of appellant refer in complimentary terms to the culture and enlightenment of the Japanese people, and with this estimate we have no reason to disagree; but these are matters which cannot enter into our consideration of the questions here at issue. We have no function in the matter other than to ascertain the will of Congress and declare it. Of course there is not implied-either in the legislation or in our interpretation of it-any suggestion of individual unworthiness or racial inferiority. These considerations are in no manner involved. [260 U.S. 178, 199] The questions submitted are therefore answered as follows:

Question No. 1. The act of June 29, 1906, is not complete in itself, but is limited by section 2169 of the Revised Statutes of the United States.

Question No. 2. No.

Question No. 3. No.

It will be so certified.

U.S. Supreme Court
TAKUJI YAMASHITA v. HINKLE, 260 U.S. 199 (1922)

260 U.S. 199

TAKUJI YAMASHITA et al.
v.
HINKLE, Secretary of State of Washington.

No. 177.
Argued Oct. 3 and 4, 1922.
Decided Nov. 13, 1922.

Messrs. Geo. W. Wickersham, of New York City, and Corwin S. Shank, of Seattle, Wash., for petitioners.

Mr. Lindsay L. Thompson, of Olympia, Wash., for respondent.

[260 U.S. 199, 200]

Mr. Justice SUTHERLAND delivered the opinion of the Court.

This case presents one of the questions involved in the case of Takao Ozawa v. United States, 260 U.S. 178 , 43 Sup. Ct. 65, 67 L. Ed. --, this day decided, viz.: Are the petitioners, being persons of the Japanese race born in Japan, entitled to naturalization under section 2169 of the Revised Statutes of the United States?

Certificates of naturalization were issued to both petitioners by a superior court of the state of Washington prior to 1906, when section 2169 (Comp. St. 4358) is conceded to have been in full force and effect.

The respondent, as Secretary of State of the state of Washington, refused to receive and file articles of incorporation of the Japanese Real Estate Holding Company, executed by petitioners, upon the ground that, being of the Japanese race, they were not at the time of their naturalization and never had been entitled to naturalization under the laws of the United States and were therefore not qualified under the laws of the state of Washington to form the corporation proposed, or to file articles naming them as sole trustees of said corporation. Thereupon petitioners applied to the Supreme Court of the state for a writ of mandamus to compel respondent to receive and file the articles of incorporation, but that court refused and petitioners bring the case here by writ of certiorari.

Upon the authority of Takao Ozawa v. United States, supra, we must hold that the petitioners were not eligible to naturalization, and as this ineligibility appeared upon the face of the judgment of the superior court, admitting petitioners to citizenship, that court was without juris diction [260 U.S. 199, 201] and its judgment was void. In re Gee Hop (D. C.) 71 Fed. 274; In re Yamashita, 30 Wash. 234, 70 Pac. 482, 94 Am. St. Rep. 860.

The judgment of the Supreme Court of the state of Washington is therefore

Affirmed.

U.S. Supreme Court
U.S. v. BHAGAT SINGH THIND, 261 U.S. 204 (1923)

261 U.S. 204

UNITED STATES
v.
BHAGAT SINGH THIND.
No. 202.

Argued Jan. 11, 12, 1923.
Decided Feb. 19, 1923.

Mr. Solicitor General Beck, of Washington, D. C., for the United states.

Mr. Will R. King, of Washington, D. C., for Thind.

Mr. Justice SUTHERLAND delivered the opinion of the Court.

This cause is here upon a certificate from the Circuit Court of appeals requesting the instruction of this Court in respect of the following questions:

'1. Is a high-caste Hindu, of full Indian blood, born at Amritsar, Punjab, India, a white person within the meaning of section 2169, Revised Statutes?

'2. Does the Act of February 5, 1917 (39 Stat. 875, 3), disqualify from naturalization as citizens those Hindus now barred by that act, who had lawfully entered the United States prior to the passage of said act?'

The appellee was granted a certificate of citizenship by the District Court of the United States for the District of Oregon, over the objection of the Naturalization Examiner for the United States. A bill in equity was then filed by the United States, seeking a cancellation of the certificate on the ground that the appellee was not a white person and therefore not lawfully entitled to naturalization. The District Court, on motion, dismissed the bill (In re Bhagat Singh Thind, 268 Fed. 683), and an appeal was taken to the Circuit Court of Appeals. No question is made in respect of the individual qualifications of the appellee. The sole question is whether he falls within the class designated by Congress as eligible.

Section 2169, Revised Statutes (Comp. St. 4358), provides that the provisions of the Naturalization Act 'shall apply to aliens being free white persons and to aliens of African nativity and to persons of African descent.'

If the applicant is a white person, within the meaning of this section, he is entitled to naturalization; otherwise not. In Ozawa v. United States, 260 U.S. 178, 43 Sup. Ct. 65, 67 L. Ed. -- , decided November 13, 1922, we had occasion to consider the application of these words to the case of a cultivated Japanese and were constrained to hold that he was not within their meaning. As there pointed out, the provision is not that any particular class of persons shall be excluded, but it is, in effect, that only white persons shall be included within the privilege of the statute. 'The intention was to confer the privilege of citizenship upon that class of persons whom the fathers knew as white, and to deny it to all who could not be so classified. It is not enough to say that the framers did not have in mind the brown or yellow races of Asia. It is necessary to go farther and be able to say that had these particular races been suggested the language of the act would have been so varied as to include them within its privileges'-citing Dartmouth College v. Woodward, 4 Wheat. 518, 644. Following a long line of decisions of the lower Federal courts, we held that the words imported a racial and not an individual test and were meant to indicate only persons of what is popularly known as the Caucasian race. But, as there pointed out, the conclusion that the phrase 'white persons' and the word 'Caucasian' are synonymous does not end the matter. It enabled us to dispose of the problem as it was there presented, since the applicant for citizenship clearly fell outside the zone of debatable ground on the negative side; but the decision still left the question to be dealt with, in doubtful and different cases, by the 'process of judicial inclusion and exclusion.' Mere ability on the part of an applicant for naturalization to establish a line of descent from a Caucasian ancestor will not ipso facto to and necessarily conclude the inquiry. 'Caucasian' is a conventional word of much flexibility, as a study of the literature dealing with racial questions will disclose, and while it and the words 'white persons' are treated as synonymous for the purposes of that case, they are not of identical meaning -- idem per idem.

In the endeavor to ascertain the meaning of the statute we must not fail to keep in mind that it does not employ the word 'Caucasian,' but the words 'white persons,' and these are words of common speech and not of scientific origin. The word 'Caucasian,' not only was not employed in the law but was probably wholly unfamiliar to the original framers of the statute in 1790. When we employ it, we do so as an aid to the ascertainment of the legislative intent and not as an invariable substitute for the statutory words. Indeed, as used in the science of ethnology, the connotation of the word is by no means clear, and the use of it in its scientific sense as an equivalent for the words of the statute, other considerations aside, would simply mean the substitution of one perplexity for another. But in this country, during the last half century especially, the word by common usage has acquired a popular meaning, not clearly defined to be sure, but sufficiently so to enable us to say that its popular as distinguished from its scientific application is of appreciably narrower scope. It is in the popular sense of the word, therefore, that we employ is as an aid to the construction of the statute, for it would be obviously illogical to convert words of common speech used in a statute into words of scientific terminology when neither the latter nor the science for whose purposes they were coined was within the contemplation of the framers of the statute or of the people for whom it was framed. The words of the statute are to be interpreted in accordance with the understanding of the common man from whose vocabulary they were taken. See Maillard v. Lawrence, 16 How. 251, 261.

They imply, as we have said, a racial test; but the term 'race' is one which, for the practical purposes of the statute, must be applied to a group of living persons now possessing in common the requisite characteristics, not to groups of persons who are supposed to be or really are descended from some remote, common ancestor, but who, whether they both resemble him to a greater or less extent, have, at any rate, ceased altogether to resemble one another. It may be true that the blond Scandinavian and the brown Hindu have a common ancestor in the dim reaches of antiquity, but the average man knows perfectly well that there are unmistakable and profound differences between them to-day; and it is not impossible, if that common ancestor could be materialized in the flesh, we should discover that he was himself sufficiently differentiated from both of his descendants to preclude his racial classification with either. The question for determination is not, therefore, whether by the speculative processes of ethnological reasoning we may present a probability to the scientific mind that they have the same origin, but whether we can satisfy the common understanding that they are now the same or sufficiently the same to justify the interpreters of a statute-written in the words of common speech, for common understanding, by unscientific men-in classifying them together in the statutory category as white persons. In 1790 the Adamite theory of creation-which gave a common ancestor to all mankind-was generally accepted, and it is not at all probable that it was intended by the legislators of that day to submit the question of the application of the words 'white persons' to the mere test of an indefinitely remote common ancestry, without regard to the extent of the subsequent divergence of the various branches from such common ancestry or from one another.

The eligibility of this applicant for citizenship is based on the sole fact that he is of high-caste Hindu stock, born in Punjab, one of the extreme northwestern districts of India, and classified by certain scientific authorities as of the Caucasian or Aryan race The Aryan theory as a racial basis seems to be discredited by most, if not all, modern writers on the subject of ethnology. A review of their contentions would serve no useful purpose. It is enough to refer to the works of Deniker ( Races of Man, 317), Keane (Man, Past and Present, 445, 446), and Huxley ( Man's Place in Nature, 278) and to the Dictionary of Races, Senate Document 662, 61st Congress, 3d Sess. 1910-1911, p. 17.

The term 'Aryan' has to do with linguistic, and not at all with physical, characteristics, and it would seem reasonably clear that mere resemblance in language, indicating a common linguistic root buried in remotely ancient soil, is altogether inadequate to prove common racial origin. There is, and can be, no assurance that the so-called Aryan language was not spoken by a variety of races living in proximity to one another. Our own history has witnessed the adoption of the English tongue by millions of negroes, whose descendants can never be classified racially with the descendants of white persons, notwithstanding both may speak a common root language.

The word 'Caucasian' is in scarcely better repute. [Footnote 1] It is at best a conventional term, with an altogether fortuitous origin, [Footnote 2] which under scientific manipulation, has come to include far more than the unscientific mind suspects. According to Keane, for example (The World's Peoples, 24, 28, 307, et seq.), it includes not only the Hindu, but some of the Polynesians [Footnote 3] (that is, the Maori, Tahitians, Samoans, Hawaiians, and others), the Hamites of Africa, upon the ground of the Caucasoid cast of their features, though in color they range from brown to black. We venture to think that the average well-informed white American would learn with some degree of astonishment that the race to which he belongs is made up of such heterogeneous elements. [Footnote 4] The various authorities are in irreconcilable disagreement as to what constitutes a proper racial division. For instance, Blumenbach has 5 races; Keane following Linnaeus, 4; Deniker, 29.5 The explanation probably is that 'the innumerable varieties of mankind run into one another by insensible degrees,'6 and to arrange them in sharply bounded divisions is an undertaking of such uncertainty that common agreement is practically impossible.

It may be, therefore, that a given group cannot be properly assigned to any of the enumerated grand racial divisions. The type may have been so changed by intermixture of blood as to justify an intermediate classification. Something very like this has actually taken place in India. Thus, in Hindustan and Berar there was such an intermixture of the 'Aryan' invader with the dark-skinned Dravidian. [Footnote 7]

In the Punjab and Rajputana, while the invaders seem to have met with more success in the effort to preserve their racial purity,8 intermarriages did occur producing an intermingling of the two and destroying to a greater or less degree the purity of the 'Aryan' blood. The rules of caste, while calculated to prevent this intermixture, seem not to have been entirely successful. [Footnote 9]

It does not seem necessary to pursue the matter of scientific classification further. We are unable to agree with the District Court, or with other lower federal courts, in the conclusion that a native Hindu is eligible for naturalization under section 2169. The words of familiar speech, which were used by the original framers of the law, were intended to include only the type of man whom they knew as white. The immigration of that day was almost exclusively from the British Isles and Northwestern Europe, whence they and their forebears had come. When they extended the privilege of American citizenship to 'any alien being a free white person' it was these immigrants-bone of their bone and flesh of their flesh-and their kind whom they must have had affirmatively in mind. The succeeding years brought immigrants from Eastern, Southern and Middle Europe, among them the Slavs and the dark-eyed, swarthy people of Alpine and Mediterranean stock, and these were received as unquestionably akin to those already here and readily amalgamated with them. It was the descendants of these, and other immigrants of like origin, who constituted the white population of the country when section 2169, re-enacting the naturalization test of 1790, was adopted, and, there is no reason to doubt, with like intent and meaning.

What, if any, people of Primarily Asiatic stock come within the words of the section we do not deem it necessary now to decide. There is much in the origin and historic development of the statute to suggest that no Asiatic whatever was included. The debates in Congress, during the consideration of the subject in 1870 and 1875, are persuasively of this character. In 1873, for example, the words 'free white persons' were unintentionally omitted from the compilation of the Revised Statutes. This omission was supplied in 1875 by the act to correct errors and supply omissions. 18 Stat. c. 80, p. 318. When this act was under consideration by Congress efforts were made to strike out the words quoted, and it was insisted upon the one hand and conceded upon the other, that the effect of their retention was to exclude Asiatics generally from citizenship. While what was said upon that occasion, to be sure, furnishes no basis for judicial construction of the statute, it is, nevertheless, an important historic incident, which may not be altogether ignored in the search for the true meaning of words which are themselves historic. That question, however, may well be left for final determination until the details have been more completely disclosed by the consideration of particular cases, as they from time to time arise. The words of the statute, it must be conceded, do not readily yield to exact interpretation, and it is probably better to leave them as they are than to risk undue extension or undue limitation of their meaning by any general paraphrase at this time.

What we now hold is that the words 'free white persons' are words of common speech, to be interpreted in accordance with the understanding of the common man, synonymous with the word 'Caucasian' only as that word is popularly understood. As so understood and used, whatever may be the speculations of the ethnologist, it does not include the body of people to whom the appellee belongs. It is a matter of familiar observation and knowledge that the physical group characteristics of the Hindus render them readily distinguishable from the various groups of persons in this country commonly recognized as white. The children of English, French, German, Italian, Scandinavian, and other European parentage, quickly merge into the mass of our population and lose the distinctive hallmarks of their European origin. On the other hand, it cannot be doubted that the children born in this country of Hindu parents would retain indefinitely the clear evidence of their ancestry. It is very far from our thought to suggest the slightest question of racial superiority or inferiority. What we suggest is merely racial difference, and it is of such character and extent that the great body of our people instinctively recognize it and reject the thought of assimilation.

It is not without significance in this connection that Congress, by the Act of February 5, 1917, 39 Stat. 874, c. 29, 3 (Comp. St. 1918, Comp. St. Ann. Supp. 1919, 4289 1/4b), has now excluded from admission into this country all natives of Asia within designated limits of latitude and longitude, including the whole of India. This not only constitutes conclusive evidence of the congressional attitude of opposition to Asiatic immigration generally, but is persuasive of a similar attitude toward Asiatic naturalization as well, since it is not likely that Congress would be willing to accept as citizens a class of persons whom it rejects as immigrants.

It follows that a negative answer must be given to the first question, which disposes of the case and renders an answer to the second question unnecessary, and it will be so certified.

Answer to question No. 1, No.

Footnotes

Footnote 1 Dictionary of Races, supra, p. 31.

Footnote 2 2 Encyclopaedia Britannica (11th Ed.) p. 113: 'The ill-chosen name of Caucasian, invented by Blumenbach in allusion to a South Caucasian skull of specially typical proportions, and applied by him to the so- called white races, is still current; it brings into one race peoples such as the Arabs and Swedes, although these are scarcely less different than the Americans and Malays, who are set down as two distinct races. Again, two of the best marked varieties of mankind are the Australians and the Bushmen, neither of whom, however, seems to have a natural place in Blumenbach's series.'

Footnote 3 The United States Bureau of Immigration classifies all Pacific Islanders as belonging to the 'Mongolic grand division.' Cistionary of Races, supra, p. 102.

Footnote 4 Keane himself says that the Caucasoid division of the human family is 'in point of fact the most debatable field in the whole range of anthropological studies.' Man: Past and Present, p. 444

And again: 'Hence it seems to require a strong mental effort to sweep into a single category, however elastic, so many different peoples- Europeans, North Africans, West Asiatics, Iranians, and others all the way to the Indo-Gangetic plains and uplands, whose complexion presents every shade of color, except yellow, from white to the deepest brown or even black.

'But they are grouped together in a single division, because their essential properties are one, . . . their substantial uniformity speaks to the eye that sees below the surface . . . we recognize a common racial stamp in the facial expression, the structure of the hair, partly also the bodily proportions, in all of which points they agree more with each other than with the other main divisions. Even in the case of certain black or very dark races, such as the Bejas, Somali, and a few other Eastern Hamites, we are reminded instinctively more of Europeans or Berbers than of thanks to their more regular features and brighter expression.' Id. 448.

Footnote 5 Dictionary of Races, supra, p. 6. See, generally, 2 Encyclopedia Britannica (11th Ed.) p. 113.

Footnote 6 2 Encyclopedia Britannica (11th Ed.) p. 113.

Footnote 7 13 Encyclopedia Britannica (11th Ed.) p. 502.

Footnote 8 Id.

Footnote 9 13 Encyclopedia Britannica, p. 503. 'In spite, however, of the artificial restrictions placed on the intermarrying of the castes, the mingling of the two races seems to have proceeded at a tolerably rapid rate. Indeed, the paucity of women of the Aryan stock would probably render these mixed unions almost a necessity from the very outset; and the vaunted purity of blood which the caste rules were calculated to perpetuate can scarcely have remained of more than a relative degree even in the case of the Brahman caste.'

And see the observations of Keane (Man, Past and Present, p. 561) as to the doubtful origin and effect of caste.

U.S. Supreme Court
CHANG CHAN v. NAGLE, 268 U.S. 346 (1925)

268 U.S. 346

CHANG CHAN et al.
v.
NAGLE, as Com'r of Immigration for Port of San Francisco.
No. 770.

Argued April 17-20, 1925.
Decided May 25, 1925.

[268 U.S. 346, 347] Messrs. George A. McGowan, of San Francisco, Cal., Frederick D. M. McKenney, of Washington, D. C., and John L. McNab, of San Francisco, Cal., for petitioner Chang Chan.

[268 U.S. 346, 350] Mr. Assistant Attorney General Donovan, for Commissioner.

Messers. Henry W. Taft, of New York City, and A. Warner Parker, of Washington, D. C., amici curiae.

Mr. Justice McREYNOLDS delivered the opinion of the Court.

Petitioners, Chang Chan and three others, claiming to be native-born citizens of the United States permanently domiciled therein, sought release from detention by the Immigration Commissioner of four young Chinese women, alleged to be their lawful wives wedded in China prior to July 1, 1924. On that day the young women were on the high seas as passengers upon the President Lincoln. Arriving at San Francisco July 11, without immigration vises as provided for by section 9, Immigration Act of 1924, c. 190, 43 Stat. 153, they sought and were [268 U.S. 346, 351] finally denied permanent admission. In support of this action the Secretary of Labor said:

'Neither the citizenship of the alleged husband, nor the relationship of the applicant to him, has been investigated for the reason that even if it were conceded that both elements exist she would still be inadmissible, as section 13 of the Act of 1924 mandatorily excludes the wives of United States citizens of the Chinese race if such wives are of a race or persons ineligible to citizenship, and the Department has no alternative than to recommend exclusion.'

The court below inquires, Judicial Code, 239 (Comp. St. 1216):

'Should the petitioners be refused admission to the United States either, (a) because of the want of a vise; or (b) because of want of right of admission if found to be Chinese wives of American citizens?'

This cause involves no claim of right granted or guaranteed by treaty and is therefore radically different from Cheung Sum Shee et al. v. John D. Nagle, etc., 268 U.S. 336 , 45 S. Ct. 539, this day becided.

The excluded wives are alien Chinese ineligible to citizenship here. Rev. Stat. 2169 (Comp. St. 4358); Act May 6, 1882, c. 126, 14, 22 Stat. 58, 61 (Comp. St. 4359). Notwithstanding their marriage to citizens of the United States, they did not become citizens and remained incapable of naturalization.

Prior to September 22, 1922, Rev. Stat. 1994 (Comp. St. 3948) applied. It provided:

'Any woman who is now or may hereafter be married to a citizen of the United States, and who might herself be lawfully naturalized, shall be deemed a citizen.'

Since that date chapter 411, 42 Stat. 1021, 1022, 2 (Comp. St. Ann. Supp. 1923, 4358b), has been in force. It provides:

'That any woman who marries a citizen of the United States after the passage of this act, or any woman whose husband is naturalized after the passage of this act, shall not become a citizen of the United States [268 U.S. 346, 352] by reason of such marriage or naturalization; but, if eligible to citizenship, she may be naturalized upon full and complete compliance with all requirements of the naturalization laws. . . .'

Section 13(c), Immigration Act of 1924, declares:

'No alien ineligible to citizenship shall be admitted to the United States unless such alien (1) is admissible as a nonquota immigrant under the provisions of subdivision (b), (d), or (e) of section 4, or ( 2) is the wife, or the unmarried child under eighteen years of age, of an immigrant admissible under such subdivision (d), and is accompanying or following to join him, or (3) is not an immigrant as defined in section 3.'

Subdivisions (b), (d), and (e) of section 4 apply to immigrants previously lawfully admitted, immigrants who seek to enter as religious ministers or professors, and to students. They are not controlling here. An 'immigrant' is defined in section 3 as 'any alien departing from any place outside the United States destined for the United States,' with certain exceptions, none of which describes the present applicants.

Taken in their ordinary sense the words of the statute plainly exclude petitioners' wives.

We cannot accept the theory that as consular officers are required to issue vises to Chinese wives of American citizens therefore they must be admitted. A sufficient answer to this is found in 2(g) --

'Nothing in this act shall be construed to entitle an immigrant, to whom an immigration visa has been issued, to enter the United States, if, upon arrival in the United States, he is found to be inadmissible to the United States under the immigration laws.'

Nor can we approve the suggestion that the provisions contained in subdivision (a)1 of section 4 were omitted from [268 U.S. 346, 353] the exceptions in section 13(c) because of some obvious oversight and should now be treated as if incorporated therein. Although descriptive of certain 'nonquota immigrants,' that subdivision is subject to the positive inhibition against all aliens ineligible to citizenship who do not fall within definitely specified and narrowly restricted classes.

In response to the demand for an interpretation of the act which will avoid hardships and further a supposed rational and consistent policy, it suffices to refer to what we have said in Yee Won v. White, 256 U.S. 399, 401 , 402 S., 41 S. Ct. 504; Chung Fook v. White, 264 U.S. 443, 445 , 446 S., 44 S. Ct. 361; Commissioner, etc., v. Gottlieb, 265 U.S. 310, 314 , 44 S. Ct. 528

The applicants should be refused admission if found to be Chinese wives of American citizens. It is unnecessary now to consider the requirement of the act in respect of vises.

Footnotes

[ Footnote 1 ] 'An immigrant who is the unmarried child under 18 years of age, or the wife, of a citizen of the United States who resides therein at the time of the filing of a petition under section 9.'

85 F. Supp. 674; 1949 U.S. Dist. LEXIS 2527

MEIJI FUJIZAWA v. ACHESON, Secretary of State

No. 981

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF CALIFORNIA, SOUTHERN DIVISION

August 23, 1949

COUNSEL: [**1] A. L. Wirin, Fred Okrand, Los Angeles, Cal., for plaintiff, Meiji Fujizawa.

James M. Carter, United States Attorney, Robert J. Kelleher, Assistant United States Attorney, Los Angeles, Cal., for defendant, Dean Acheson, Secretary of State.

OPINION BY: WEINBERGER

OPINION: [*674]

Plaintiff, a person of Japanese ancestry, born in the United States, brings this action against the Secretary of State. Jurisdiction appears under the provisions of 8 U.S.C.A. § 903, plaintiff having applied at the United States Consulate at Kobe, Japan, to establish his claim as an American citizen and to register as a United States national, and said claim and registration having been denied by said United States Consul upon the ground that plaintiff had lost his United States nationality by obtaining naturalization in a foreign state. Plaintiff claims a permanent residence in this District, to-wit, in Imperial County, California.

At the trial of the cause, the plaintiff appeared and testified upon the witness stand; testimony of other witnesses was introduced through stipulations of counsel, in the form of affidavits and excerpts from transcripts of another trial held in this district.

Memoranda [**2] were filed by the respective counsel before and after trial, argument was had, and the matter submitted for decision.

Plaintiff alleges in his complaint that at no time he intended to, or desired to, lose his United States nationality, and that he did not lose his said nationality by virtue of any act performed by him, and that he did not obtain naturalization in Japan or in any foreign state; in the alternative, plaintiff alleges that if the Court finds that he did obtain the nationality of a foreign state, said obtaining of said nationality was not the free and voluntary act of the plaintiff within the meaning and intent of the United States Nationality Act, but was the result of mistake, misunderstanding and/or coercion.

Plaintiff also maintains that 8 U.S.C.A. § 801(a) as applied to the plaintiff is unconstitutional in that it deprives the plaintiff of his rights as a citizen of the United States as guaranteed by the Fourteenth Amendment to the Constitution of the United States.

Defendant admits that plaintiff was born in the United States, but denies that plaintiff has been a permanent resident of Imperial County, California, denies that plaintiff is a citizen of the United [**3] States, denies plaintiff's allegations that he did not lose his nationality as a United States citizen, and denies that he did not obtain naturalization in Japan.

[*675] Counsel for defendant in his brief filed December 23, 1948, at page 5 thereof, states the following questions are presented:

"(1) Did Fujizawa, a national of the United States by birth, lose his nationality under Title 8 U.S.C.A. § 801(a) by "obtaining naturalization in a foreign State either upon his own application, or * * * "

"(2) Did Fujizawa's petition for restoration of Japanese citizenship (which he had renounced before leaving the United States) constitute "naturalization" or did it merely restore him to the status he had had at birth, namely citizenship in the United States, and according to Japanese law, citizenship in Japan."

"(3) If the actions of Fujizawa in Japan, in obtaining a family register and securing the restoration of Japanese citizenship, constituted "naturalization" under Title 8 U.S.C.A. § 801, did he do such acts in Japan under such pressure or duress, that the act was not free and voluntary."

The evidence here discloses that the plaintiff, of Japanese ancestry, was born in [**4] Imperial County, California, and following his graduation there from high school, went to Japan to further his education and to study the Japanese language, intending thereafter to return to the United States to engage in the export and import trade.

Prior to leaving the United States for Japan in June, 1939, in order to make certain that he retained his United States citizenship, and knowing that a Nisei was subject to the draft laws in Japan, he, through his father, took steps to renounce his Japanese nationality, which was accomplished in October, 1939, after plaintiff arrived in Japan.

In accordance with the provisions of Japanese law, every Japanese national possesses a personal record which is kept, together with the records of other members of his legal family, at a municipal office. On this record vital facts are reported, such as date of birth, name of spouse, offspring, military service, criminal record, etc.

These records are consulted extensively and it is a general practice to submit and require certified copies of one's Family Register Record in connection with applications for employment, marriage, negotiations, and in all other situations where background and status [**5] are important.

Plaintiff's father possessed such a Family Register on which the name of the plaintiff was also registered, and upon the plaintiff's renunciation of his nationality, his name was cancelled therefrom.

Plaintiff arrived in Japan in July, 1939, and then took up his studies, attending night classes, not desiring to take military training which was required of those attending the day classes.

After the declaration of war between the United States and Japan, on December 8, 1941, he continued his studies and graduated from said university in September, 1943.

Prior to the declaration of war, his parents, then residing in California, sent him money for his livelihood, and thereafter his relatives in Japan supported him until his graduation from the University after which he was unable to procure further funds and was required to find employment.

The evidence further discloses that when plaintiff applied for a position, he was informed that he could secure no employment unless his name appeared in the Family Register. He then applied at the City Hall in Tokyo for the registry of his name in the Family Register. An official asked plaintiff why he made such request and plaintiff [**6] gave as his reason that he was not getting any funds and needed a job for his livelihood. The official than advised plaintiff that he had to apply for a recovery of his Japanese nationality, and an application for such recovery was then made by plaintiff on a form filled out by the official.

Thereafter, in September of 1943, plaintiff received notice from the Home Ministry consisting of a simple statement that his application for recovery had been granted. He then opened his own Family Register which he used in procuring employment as an interpreter and in getting his rations. From September to November of 1943 he was employed as an interpreter by the Oeyama Nickle Industry Company, Limited [*676] and thereafter and until V-J day was employed as an interpreter in the Oeyama Prisoners of War Camp where United States, Canadian, British and other war prisoners were detained; since V-J day, he has been employed by the United States military authorities in Japan as an interpreter.

While acting as such interpreter in the camp, the evidence discloses that he assisted the prisoners in many ways, contributing to their health and comfort in procuring for them medical supplies outside [**7] of camp such as sulphur compounds and vitamins, fruit, writing tablets and other necessities, thereby violating Japanese rules, and subjecting himself to disciplinary action if his activities had become known to his Japanese superiors.

It is of interest to note that at the close of hostilities, while plaintiff was so employed, a number of prisoners of war, including officers of the United States Army and Navy, and Canadian and British officers, on or about August 1, 1945, without any solicitation or request of the plaintiff gave to the plaintiff a document which was introduced in evidence which gave testimony as to the esteem in which these officers held the plaintiff, in terms as follows: " * * * Now that hostilities have ceased, we wish to go on record and state that although he is of Nipponese extraction, he has, under the most difficult circumstances, conducted himself in a manner worthy of merit and in accordance with the American idea of assistance and fair play. He has proven himself to be an American under conditions where many, if not most, would have failed and we feel that he has performed his duty here to more effect than if he had been an American soldier on the front [**8] lines. * * * "

On July 30, 1947, he applied at the United States Consulate at Kobe, Japan, to establish his claim as an American citizen, and to register as a United States national.

In connection with plaintiff's proceedings before the American Consulate in Yokahama [sic], Japan, the plaintiff, on July 30, 1947, submitted to the American Consul a statement, a portion of which is as follows: "After completing the commercial course at Meiji University in September, 1943, I had to find some sort of job since no funds were available any more from my parents in the States. I accepted the job as interpreter (September 8, 1943 to cessation of hostilities in 1945) * * * of course I was given the job with the understanding that I make necessary arrangements to have my name in the Register. Under the circumstances I had no alternative * * * finishing school, running out of money, placed under duress and pressure, situation I was in forced me to re-acquire Japanese citizenship. * * * "

Plaintiff further testified that he did not take any oath of allegiance to Japan in connection with any proceedings, and there is no evidence to the contrary; that he never made any formal renunciation of his [**9] American citizenship, and there is no evidence that he did; there is also evidence that plaintiff was never in the Japanese military service; that there were at least two elections during the time plaintiff was in Japan prior to the filing of this petition, and that plaintiff did not vote in either election. Plaintiff further testified that at all times he was loyal to the United States; that he never intended to abandon his United States citizenship; that he never intended to lose his United States citizenship.

The testimony of Thomas L. Blakemore, a resident in Japan who was formerly language officer in the United States Army, and formerly legal assistant in the Office of the United States Political Adviser in Tokyo, and at the time of the trial of this case, was employed under the Supreme Commander of Allied Powers as Chief of Civil Affairs and Civil Liberties Branch, Legislative and Justice Division, Legal Section, in Tokyo, Japan, was introduced by affidavit which by stipulation was considered a deposition. Mr. Blakemore's qualifications entitle him to be regarded as an authority on conditions in Japan during the period the plaintiff lived there, and his testimony concerning [**10] the influences surrounding a person of plaintiff's status during such period is entitled to great weight. It is summarized as follows:

During World War II the Nisei who had renounced their Japanese Nationality were [*677] in a difficult position because of inability, as aliens, to obtain the generally used and accepted proof of identity available only to persons of Japanese Nationality, to-wit, copies of the Family Register Record; in Japanese society the Family Register Record is used for many purposes, and is a necessary step in connection with marriage, negotiations, schooling, employment and during time of rationing of food, clothing and housing, and when restrictions were placed on residence and movement about the country, the need for a Family Register Record became even stronger, and in some cases such Register might have become a prerequisite for survival; that the Japanese government provided for the support of neutrals and axis nationals in Japan, but no such protection was accorded persons of the Japanese race who possessed enemy nationality; they were not interned; such a person was "forced to fend for himself in a potentially hostile society, without even that protection [**11] which was afforded to Japanese detained in relocation centers in America, and also without the credentials of a Japanese." That lack of nationality on the part of a person of Japanese race would mark him as a renegade, and censure and criticism would be directed toward the family of such person; that at times such criticism could cause a powerful pressure upon the person concerned to take steps necessary to obtain the conventional identification of a Japanese; that almost all of the Nisei who lived in Japan at the outbreak of World War II who lacked a formal connection with a Japanese family, took steps to obtain Family Register Record credentials.

The testimony of Roger N. Baldwin was also introduced in the same manner as that of Mr. Blakemore; Mr. Baldwin testified he was invited by General MacArthur to serve as a consultant on civil liberties in Japan and Korea for a period of three months, and instead, he arranged to serve independently of official employment, in the capacity of representative of the American Civil Liberties Union, the World Federation of United Nations Associations and the Japanese American Citizens League; while in the capacity just described, Mr. Baldwin interviewed [**12] many people concerning the conditions in war-time Japan as the same affected American born Japanese present during such period, and he testified in part as follows: "Food and jobs were essential, and if one had to go through the incredibly simple process of becoming Japanese merely by signing his name or having a father do so, the food or the job seemed to warrant it. * * * They were generally ignorant of the complicated provisions of the naturalization laws of the United States and of Japan, and there were few lawyers capable of advising anybody."

Counsel for the defendant in a brief filed March 11, 1949, quotes from published articles prepared by Mr. Blakemore, wherein the latter sets forth provisions contained in the Japanese law, and interprets such provisions. With reference to the Family Register Record, Mr. Blakemore is quoted as stating that such registration is limited to Japanese nationals, and that the inability or reluctance to provide a copy of such record upon request normally would arouse suspicion of a person who purported to be a Japanese.

Counsel for defendant in said last mentioned brief, further quotes Mr. Blakemore concerning the provisions of the Japanese [**13] law on the subject of naturalization, to the effect that an alien may become naturalized in Japan with the permission of the Minister of Home Affairs, providing the alien has certain qualifications. Mr. Blakemore is quoted as stating: "'Naturalization' requires the voluntary surrender or automatic extinction of any foreign nationality therefore possessed by the alien applicant."

The quotations from Mr. Blakemore do not inform the Court, however, as to the manner in which the "voluntary surrender or automatic extinction" of any foreign nationality is accomplished, whether any affirmative act is required, such as a formal renunciation of foreign nationality, or whether an oath of allegiance to Japan must be taken.

Mr. Blakemore is again quoted, at page 8 of said brief, as stating, in an article entitled "Recovery of Japanese Nationality" [*678] that "recovery" is a process which resembles naturalization in that it confers Japanese nationality on a non-possessor; that the "recovery" method of obtaining Japanese nationality is available only to former possessors who have lost their Japanese nationality through various means, one of which is mentioned as "renunciation made by the [**14] individual concerned or by his parents on his behalf;" Mr. Blakemore is quoted as stating that the authority to permit "recovery" is vested in the Minister of Home Affairs, and the brief sets forth the provisions which Mr. Blakemore quotes as being from the standard form of application for permission to "recover" nationality, as follows: "The above described individual, who has lost Japanese nationality in accordance with the provisions of Section 2 of Article 20 of the Nationality Act and has obtained the Nationality of * * * country, now having returned to Japan for the purpose of residing here permanently and having become domiciled at the address hereinabove stated, and now being desirous of obtaining a 'recovery' hereby makes application for a grant of permission to 'recover' attaching herewith certain documents."

The attachments, Mr. Blakemore is quoted as stating, including a certificate of domicile from the Municipal mayor or Police Chief, a copy of the former Family Register Record, and a certificate as to birth in a foreign country.

While we presume that "Section 2 of Article 20" referred to in the quotations from Mr. Blakemore has to do with loss of Japanese nationality [**15] by renunciation, we cannot be certain; neither Mr. Blakemore nor any other expert on Japanese law appeared at the trial in person, and the Court was therefore unable to secure any interpretation of the laws of Japan pertinent to this case, other than as set forth in the brief of counsel for the defendant.

While we presume that the application which plaintiff testified he signed as an application for "recovery" was the standard form as quoted from Mr. Blakemore, and after which application plaintiff received a certificate to the effect that his "recovery" had been granted, we are unable to ascertain whether plaintiff was one who lost his Japanese citizenship under "Section 2 of Article 20" mentioned in the standard form. There is no evidence that in signing an application for "recovery" that plaintiff made any representations of allegiance to Japan, or any statement that he renounced his United States citizenship, or that he took any "oath of allegiance" to Japan. In fact, plaintiff testified, as we have hereinbefore mentioned, that at the time he signed the application for "recovery" he was asked his reasons therefor by the official who filled out the application and that he, the [**16] plaintiff, told said official it was for the purpose of obtaining a job. It is also a fact that plaintiff did not come within the provision of the standard application, "now having returned to Japan for the purpose of residing here permanently" because the evidence is clear that plaintiff came to Japan only temporarily, and for the purpose of learning the Japanese language, in order that he might use said language in his business in the United States, and we must deduce that if plaintiff had any intention of residing in Japan permanently at the time he returned there, he would not have, with deliberation, renounced his Japanese citizenship.

We are reluctant to interpret the laws of a foreign country upon the insufficient showing which we have before us as to such laws. See: Dainese v. Hale, 91 U.S. 13, 23 L.Ed. 190; United States ex rel. Zdunic v. Uhl, 2 Cir., 137 F.2d 858, 861; Chicago Pneumatic Tool Co. v. Ziegler, 3 Cir., 151 F.2d 784, 793.

Were we compelled to make such interpretation in order to decide this case we would incline to the view that question (1) presented in the brief of defendant filed December 23, 1948, should be decided by a conclusion that Fujizawa did not [**17] obtain naturalization in Japan, and that question (2) should be decided by a conclusion that the granting of Fujizawa's application for recovery had no legal effect other than to restore him to the status he had at birth, that of dual citizenship.

We believe, however, that this case should be decided upon a consideration of whether the acts of Fujizawa which the [*679] defendant claims caused Fujizawa to lose his United States citizenship were his free and voluntary acts and whether there was any intent to renounce his United States citizenship.

The opinions in the following cases, the first two of which are cited by the defendant, stress the importance of the principle that the act or acts which it is contended caused the loss of citizenship must have been the free and voluntary act or acts of the citizen: Dos Reis ex rel. Camara v. Nicolls, 1 Cir., 161 F.2d 860; In re Bolter. D.C., 66 F.Supp. 566; Perkins v. Elg. 307 U.S. 325, 59 S.Ct. 884, 83 L.Ed 1320; Attorney General of U.S. v. Ricketts, 9 Cir., 165 F.2d 193; Tadayasu Abo v. Clark, D.C., 77 F.Supp. 806; Schioler v. U.S., D.C., 75 F.Supp. 353.

It is true that plaintiff did not testify that any direct threats of physical [**18] violence were made to him to render his acts other than free and voluntary, but we believe plaintiff's statement to the American Consul in Japan, and his testimony on the witness stand that he made his application for "recovery" under duress and pressure. Plaintiff's contention is further supported by the testimony of Thomas L. Blakemore and Roger Baldwin to which we have hereinbefore adverted.

Plaintiff's actions before and after the making of the application for "recovery" negative any intention to renounce his status as a citizen of the United States, and show a lack of attachment to Japan; plaintiff's procedure in setting in motion his renunciation of Japanese citizenship before he left the United States; the fact that he left the United States only for the purpose of learning the Japanese language in order that he might engage in a business in the United States which made a knowledge of such language useful; the fact that he was in Japan over four years, a year and a half of which period was during the war, before he made his application for recovery; the fact that he avoided military service in Japan, though as a Nisei he was subject to such service; the fact that during the [**19] war he gave aid and comfort to enemies of Japan, at the risk of his personal safety.

We hold, therefore, that in the light of conditions shown to exist, and considering plaintiff's acts before and after such application, that the application for "recovery" which the defendant contends resulted in the loss of plaintiff's United States citizenship, was not the free and voluntary act of the plaintiff; that plaintiff never, at any time intended to renounce or relinquish his United states citizenship; that plaintiff is, and has been, since his birth, a citizen of the United States.

In view of our decision as set forth above we deem it unnecessary to consider the constitutional question raised by plaintiff.

U.S. Supreme Court

NISHIKAWA v. DULLES, 356 U.S. 129 (1958) 356 U.S. 129

NISHIKAWA v. DULLES, SECRETARY OF STATE.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT.
No. 19.

Argued May 1-2, 1957.
Restored to the calendar for reargument June 24, 1957.
Reargued October 28, 1957.
Decided March 31, 1958.

Petitioner was a native-born citizen of the United States and he was considered by Japan to be a citizen of that country because his parents were Japanese citizens. In 1939, he went to Japan, intending to stay between two and five years visiting and studying. In 1941, he was conscripted into the Japanese Army, and he served in that Army while Japan was at war with the United States. After the war, he applied for an American passport but was given instead a certificate of loss of nationality. He sued for a declaratory judgment that he was a citizen of the United States. This was denied because the district judge did not believe his testimony that his service in the Japanese Army was involuntary. Petitioner alone testified at the trial. The Government introduced no testimony, and its only affirmative evidence was that petitioner went to Japan at a time when he was subject to conscription. Held: The evidence was not sufficient to establish petitioner's loss of citizenship under 401 (c) of the Nationality Act of 1940 as a result of his entering and serving in the armed forces of a foreign state. Pp. 130-138.

(a) No conduct results in expatriation unless the conduct is engaged in voluntarily. P. 133.

(b) When a citizenship claimant proves his birth in this country or acquisition of American citizenship in some other way, the burden is upon the Government to prove an act that shows expatriation by clear, convincing and unequivocal evidence; and this rule governs cases under all subsections of 401. P. 133.

(c) Because the consequences of denationalization are so drastic, the burden is upon the Government of persuading the trier of fact by clear, convincing and unequivocal evidence that the act showing renunciation of citizenship was performed voluntarily whenever the question of voluntariness is put in issue. Pp. 133-137.

(d) On the record in this case, the Government has not sustained the burden of establishing the voluntary conduct that is an essential ingredient of expatriation. Pp. 137-138.

235 F.2d 135, reversed.

Fred Okrand argued the cause for petitioner on the original argument, A. L. Wirin on the reargument, and both were on the briefs.

Oscar H. Davis argued the cause for respondent. With him on the briefs were Solicitor General Rankin, Warren Olney, III, then Assistant Attorney General, and Beatrice Rosenberg. J. F. Bishop was also with them on the brief on the reargument.

MR. CHIEF JUSTICE WARREN delivered the opinion of the Court.

In this, the third of the denationalization cases decided today, issues concerning Section 401 (c) of the Nationality Act of 1940 are presented. That statute provides:

"A person who is a national of the United States, whether by birth or naturalization, shall lose his nationality by:

. . . . .

"(c) Entering, or serving in, the armed forces of a foreign state unless expressly authorized by the laws of the United States, if he has or acquires the nationality of such foreign state . . . ."[Footnote 1]

We need not in this case consider the constitutionality of Section 401 (c). This case thus differs from Perez v. Brownell, ante, p. 44. and Trop v. Dulles, ante, p. 86, where questions of the constitutionality of Sections 401 (e) and 401 (g) were determined. The issues with which we are concerned here relate solely to problems of burden of proof.

Petitioner brought this action in a District Court praying for a judgment declaring him to be a citizen of the United States. The controversy arose from petitioner's application to a United States Consulate in Japan for an American passport. Instead of the passport, he received more than a year later a Certificate of the Loss of the Nationality of the United States. Petitioner alone testified at the trial, the Government introducing no testimony. What follows is a summary of his testimony.

Petitioner was born in Artesia, California, in 1916. By reason of that fact, he was a citizen of the United States, and because of the citizenship of his parents, he was also considered by Japan to be a citizen of that country. Petitioner was educated in the schools of this country and lived here until 1939. In August of that year, having been graduated from the University of California with a degree in engineering, he went to Japan, intending to stay between two and five years, visiting and studying. He knew that his father had registered him in the family register in Japan. In November of 1939 petitioner's father, who was paying his way, died in this country and petitioner, lacking funds, went to work for an aircraft manufacturing company in Japan for the equivalent of $15 a month. He was unable to accumulate any savings. Pursuant to the Military Service Law of Japan, petitioner was required about June 1940 to take a physical examination, and on March 1, 1941, he was inducted into the Japanese Army. The Military Service Law provided for imprisonment for evasion. Between the time of his physical examination and his induction, petitioner did not protest his induction or attempt to renounce his Japanese nationality, to return to the United States or to secure the aid of United States consular officials. He testified that he was told by a friend who worked at the American Embassy that the American Consulate could not aid a dual national; the Government has not contended that this was not so. He further testified that he had heard rumors about the brutality of the Japanese secret police which made him afraid to make any protest.

Petitioner testified that he did not know when he went to Japan that he was likely to be drafted. He said he was not aware at that time of any threat of war between the United States and Japan. He had left the United States just prior to the outbreak of war in Europe and two years and four months before Pearl Harbor. He testified that he was unable to read the Japanese language and lived too far out in the country to subscribe to an English-language newspaper, and therefore did not read any newspapers while in Japan.

Petitioner served as a maintenance man or mechanic in an Air Force regiment in China, Indo-China, the Philippines and Manchuria. He testified that when war between the United States and Japan began, he expressed the opinion to a group of noncommissioned officers that there was no chance of Japan's winning the war. That night he was given a thorough beating; he was beaten almost every day for a month, and afterwards he was beaten "a couple days a month." He won the nickname "America."

After hearing this testimony, the district judge announced from the bench that "the court simply does not believe the testimony of the witness. That is all. I simply do not believe his testimony." He went on to express his opinion that petitioner "went over because as a Japanese citizen under the laws of Japan it was necessary for him to serve his hitch in the army. . . . He went over and he waited until they reached him on the draft, and when they did he was drafted." Formally, the court found as a fact on the basis of petitioner's testimony alone, which did not include an admission to that effect, that his "entry and service in the Japanese Armed Forces was his free and voluntary act." Therefore he was held to have lost his nationality under Section 401 (c) and judgment was rendered for respondent. The Court of Appeals for the Ninth Circuit affirmed that judgment.[Footnote 2] We granted certiorari. 352 U.S. 907.

Whatever divergence of view there may be as to what conduct may, consistent with the Constitution, be said to result in loss of nationality, cf. Perez v. Brownell, ante, pp. 44, 62, it is settled that no conduct results in expatriation unless the conduct is engaged in voluntarily. Mandoli v. Acheson, 344 U.S. 133.[Footnote 3] The Government does not contend otherwise. Likewise, the parties are agreed that when a citizenship claimant proves his birth in this country or acquisition of American citizenship in some other way, the burden is upon the Government to prove an act that shows expatriation by clear, convincing and unequivocal evidence. In Gonzales v. Landon, 350 U.S. 920, we held that the rule as to burden of proof in denaturalization cases[Footnote 4] applied to expatriation cases under Section 401 (j) of the Nationality Act of 1940. We now conclude that the same rule should govern cases under all the subsections of Section 401.

The parties disagree as to whether the Government must also prove that the expatriating act was voluntarily performed or whether the citizenship claimant bears the burden of proving that his act was involuntary.[Footnote 5] Petitioner contends that voluntariness is an element of the expatriating act, and as such must be proved by the Government. The Government, on the other hand, relies upon the ordinary rule that duress is a matter of affirmative defense and contends that the party claiming that he acted involuntarily must overcome a presumption of voluntariness.

Because the consequences of denationalization are so drastic petitioner's contention as to burden of proof of voluntariness should be sustained. This Court has said that in a denaturalization case, "instituted . . . for the purpose of depriving one of the precious right of citizenship previously conferred we believe the facts and the law should be construed as far as is reasonably possible in favor of the citizen." Schneiderman v. United States, 320 U.S. 118, 122.[Footnote 6] The same principle applies to expatriation cases, and it calls for placing upon the Government the burden of persuading the trier of fact by clear, convincing and unequivocal evidence that the act showing renunciation of citizenship was voluntarily performed. While one finds in the legislative history of Section 401, and particularly Section 401 (c), recognition of the concept of voluntariness,[Footnote 7] there is no discussion of the problem of the burden of proof. What is clear is that the House Committee which considered the bill rejected a proposal to enact a conclusive presumption of voluntariness in the case of dual nationals entering or serving in the military forces of the nation of their second nationality.[Footnote 8] It is altogether consonant with this history to place upon the Government the burden of proving voluntariness. The Court has said that "Rights of citizenship are not to be destroyed by an ambiguity." Perkins v. Elg, 307 U.S. 325, 337. The reference was to an ambiguity in a treaty, but the principle there stated demands also that evidentiary ambiguities are not to be resolved against the citizen.

Finally, the Government contends that even if it has the burden of proving voluntariness by clear, convincing and unequivocal evidence, that burden has been met in this case. What view the District Court took of the burden of proof does not clearly appear. The Court of Appeals seemed at one point to accept the evidence in the District Court as sufficient even on the view of the burden of proof as above stated.[Footnote 9] That conclusion is not supportable. Of course, the citizenship claimant is subject to the rule dictated by common experience that one ordinarily acts voluntarily. Unless voluntariness is put in issue, the Government makes its case simply by proving the objective expatriating act. But here petitioner showed that he was conscripted in a totalitarian country to whose conscription law, with its penal sanctions, he was subject. This adequately injected the issue of voluntariness and required the Government to sustain its burden of proving voluntary conduct by clear, convincing and unequivocal evidence.[Footnote 10] The Government has not sustained that burden on this record. The fact that petitioner made no protest and did not seek aid of American officials -- efforts that, for all that appears, would have been in vain -- does not satisfy the requisite standard of proof. Nor can the district judge's disbelief of petitioner's story of his motives and fears fill the evidentiary gap in the Government's case. The Government's only affirmative evidence was that petitioner went to Japan at a time when he was subject to conscription.

On this record the Government has not established the voluntary conduct that is the essential ingredient of expatriation. The fact that this petitioner, after being conscripted, was ordered into active service in wartime on the side of a former enemy of this country must not be permitted to divert our attention from the necessity of maintaining a strict standard of proof in all expatriation cases. When the Government contends that the basic right of citizenship has been lost, it assumes an onerous burden of proof. Regardless of what conduct is alleged to result in expatriation, whenever the issue of voluntariness is put in issue, the Government must in each case prove voluntary conduct by clear, convincing and unequivocal evidence.

The judgment of the Court of Appeals is reversed and the cause is remanded to the District Court for further proceedings consistent with this opinion.

Reversed and remanded.

Footnotes

Footnote 1 54 Stat. 1168, 1169. The present provision, Immigration and Nationality Act of 1952, 349 (a) (3), 66 Stat. 267, 268, 8 U.S.C. 1481 (a) (3), eliminates the necessity that the expatriate have or acquire the nationality of the foreign state.

Footnote 2 235 F.2d 135.

Footnote 3 See also, e. g., Acheson v. Murata, 342 U.S. 900; Acheson v. Okimura, 342 U.S. 899; Dos Reis ex rel. Camara v. Nicolls, 161 F.2d 860; 41 Op. Atty. Gen., No. 16.

Footnote 4 Baumgartner v. United States, 322 U.S. 665; Schneiderman v. United States, 320 U.S. 118.

Footnote 5 Gonzales v. Landon, 350 U.S. 920; Acheson v. Murata, 342 U.S. 900, and Acheson v. Okimura, 342 U.S. 899, are not dispositive of the issue. The holding in Gonzales went to the Government's burden of proof in general without specific regard to voluntariness. Murata and Okimura came here on appeal from a District Court's holding that various subsections of 401 were unconstitutional. 99 F. Supp. 587, 591. We remanded for specific findings as to the circumstances attending the alleged acts of expatriation and the reasonable inferences to be drawn therefrom. In Bruni v. Dulles, 98 U.S. App. D.C. 358, 235 F.2d 855, the Court of Appeals for the District of Columbia Circuit considered Gonzales as requiring the Government to prove voluntariness by clear, convincing and unequivocal evidence. Lehmann v. Acheson, 206 F.2d 592, can also be read as placing that burden on the Government. It is clear, at least, that the Third Circuit, Lehmann v. Acheson, supra; Perri v. Dulles, 206 F.2d 586, as well as the Second Circuit, Augello v. Dulles, 220 F.2d 344, regards conscription as creating a presumption of involuntariness which the Government must rebut. The Court of Appeals for the District of Columbia Circuit took a contrary view prior to Bruni v. Dulles, supra. Alata v. Dulles, 95 U.S. App. D.C. 182, 221 F.2d 52; Acheson v. Maenza, 92 U.S. App. D.C. 85, 202 F.2d 453.

Footnote 6 See also United States v. Minker, 350 U.S. 179, 197 (concurring opinion): "When we deal with citizenship we tread on sensitive ground."

Footnote 7 See Hearings before the House Committee on Immigration and Naturalization on H. R. 6127, superseded by H. R. 9980, 76th Cong., 1st Sess. 150, 201.

Footnote 8 The proposal was advanced by the State Department spokesman, Mr. Flournoy, who said: "If a man is a citizen of the United States and Japan, both countries, as he would be in all of these cases we have been discussing, and he is living in Japan, and he reaches the military age, and they call him for service, it should not make any difference from our point of view whether he makes a protest or not. It is his duty to serve. He is in that country, and he is a citizen of that country, and if we accept his plea of duress in these cases it practically nullifies the whole thing, so we should put a proviso in reading somewhat as follows: That if an American national also has the nationality of a foreign country and is residing therein at a time when he reaches the age for liability of military service his entry into the armed forces thereof shall be presumed to be voluntary. In other words, a plea of duress would not make any difference. He is a citizen of that country, and he is presumed to know that when the time comes he will have to serve." Id., at 150. Spokesmen for the Labor and Justice Departments objected, stating that dual nationals should have the opportunity to be heard on the question of duress. Id., at 150-156; 169-170; 200-203. At the time of the hearings 401 (c) was not limited to dual nationals. The Senate Committee inserted the limitation. See 86 Cong. Rec. 12817. The Court of Appeals for the First Circuit has correctly concluded that little significance attaches to the failure of the House Committee to accept a suggestion that the word "voluntarily" be inserted in subsections (b) through (g) of 401. Hearings, supra, at 397-398. "It seems to us that the failure of the committee to accept this amendment is of little significance in view of the legislative history . . . indicating that such amendment was unnecessary and superfluous." Dos Reis ex rel. Camara v. Nicolls, 161 F.2d 860, 864, n. 4.

Footnote 9 235 F.2d, at 140. But see id., at 141.

Footnote 10 Petitioner's evidence of conscription also dispelled the presumption created by 402 of the Nationality Act of 1940, 54 Stat. 1169, that a national who remains six months or more within the country of which either he or his parents have been nationals, has expatriated himself under 401 (c) or (d). Even if valid, "Section 402 does not enlarge 401 (c) or (d)," Kawakita v. United States, 343 U.S. 717, 730, and, like the analogous provision of 2 of the Act of March 2, 1907, 34 Stat. 1228, it creates "a presumption easy to preclude, and easy to overcome." United States v. Gay, 264 U.S. 353, 358. The ambiguous terms of 402 have since been superseded by 349 (b) of the Immigration and Nationality Act of 1952, 66 Stat. 268, 8 U.S.C. 1481 (b), which establishes a conclusive presumption of voluntariness on the part of a dual national who performs an expatriating act if he had resided in the state of his second nationality an aggregate of ten years or more immediately prior thereto. Of course, the new statutory presumption is not in issue in this case and there is no need to consider its validity.

MR. JUSTICE BLACK, with whom MR. JUSTICE DOUGLAS joins.

While I concur in the opinion of the Court I add the following to state what I conceive to be the controlling constitutional principles in this and other expatriation cases.

The Fourteenth Amendment declares 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." Nishikawa was born in this country while subject to its jurisdiction; therefore American citizenship is his constitutional birthright. See United States v. Wong Kim Ark, 169 U.S. 649. What the Constitution has conferred neither the Congress, nor the Executive, nor the Judiciary, nor all three in concert, may strip away. Although Congress can enact laws punishing those who shirk their duties as citizens or those who jeopardize our relations with foreign countries it cannot involuntarily expatriate any citizen. AS THE CHIEF JUSTICE and MR. JUSTICE DOUGLAS explain in their dissenting opinions in Perez v. Brownell, ante, pp. 62, 79, this results not only from the provisions of the Fourteenth Amendment but from the manner in which the Government of the United States was formed, the fundamental political principles which underlie its existence, and its continuing relationship to the citizenry who erected and maintain it. Cf. Osborn v. Bank of the United States, 9 Wheat. 738, 827. In my view the notion that citizenship can be snatched away whenever such deprivation bears some "rational nexus" to the implementation of a power granted Congress by the Constitution is a dangerous and frightening proposition. By this standard a citizen could be transformed into a stateless outcast for evading his taxes, for fraud upon the Government, for counterfeiting its currency, for violating its voting laws and on and on ad infinitum.

Of course a citizen has the right to abandon or renounce his citizenship and Congress can enact measures to regulate and affirm such abjuration. But whether citizenship has been voluntarily relinquished is a question to be determined on the facts of each case after a judicial trial in full conformity with the Bill of Rights. Although Congress may provide rules of evidence for such trials, it cannot declare that such equivocal acts as service in a foreign army, participation in a foreign election or desertion from our armed forces, establish a conclusive presumption of intention to throw off American nationality. Cf. Tot v. United States, 319 U.S. 463. Of course such conduct may be highly persuasive evidence in the particular case of a purpose to abandon citizenship.

To the extent that Mackenzie v. Hare, 239 U.S. 299, and Savorgnan v. United States, 338 U.S. 491, applied principles contrary to those expressed in this opinion I believe they are inconsistent with the Constitution and cannot be regarded as binding authority.

MR. JUSTICE FRANKFURTER, whom MR. JUSTICE BURTON joins, concurring in the result.

This case involves a native-born citizen of Japanese parentage who has been declared to have lost his citizenship by virtue of 401 (c) of the Nationality Act of 1940, 54 Stat. 1137, 1169, for having served in the Japanese armed forces while subject to the law of Japan making failure to serve a crime. That is the case before the Court. The defined issue raised by this case is the only issue, in my judgment, that the Court should decide.

Petitioner asserts that his service in the Japanese forces was performed under duress. His claim of duress is based on the fact that he was inducted into the Japanese armed forces pursuant to the compulsory conscription law of that country,1 and that rumors of harsh punishment of draft evaders by the secret police and the ruthlessness of the government in power made him afraid to take any action to avoid service. The evidence to rebut this testimony, elicited on cross-examination, was that he had failed to take certain actions to avoid service; the only affirmative act urged in support of the voluntariness of his entry into service is that he went to Japan when he was of draft-eligible age2 and remained there until inducted.

It is common ground that conduct will result in expatriation only if voluntarily performed. See Mackenzie v. Hare, 239 U.S. 299, 311-312; cf. Acheson v. Okimura, 342 U.S. 899; Acheson v. Murata, 342 U.S. 900. Accordingly, where a person who has been declared expatriated contests that declaration on grounds of duress, the evidence in support of this claim must be sympathetically scrutinized. This is so both because of the extreme gravity of being denationalized and because of the subtle, psychologic factors that bear on duress. The issue that is ultimately decisive in a litigation is one thing, the mode for determining it quite another. The fact that conduct, in order to result in loss of citizenship, must be voluntary behavior does not inherently define the appropriate manner of its proof. The Government properly has a very heavy burden in expatriation cases: it must establish that the citizen committed an "act of expatriation" -- i. e., engaged in conduct of which the consequence is loss of citizenship -- by clear, convincing and unequivocal evidence. Gonzales v. Landon, 350 U.S. 920, adopting the standard of Schneiderman v. United States, 320 U.S. 118, and Baumgartner v. United States, 322 U.S. 665. This is incumbent on the Government although the evidence in cases such as these may well be difficult to obtain. Much more difficult would it be for the Government to establish the citizen's state of mind as it bears on his will, purpose and choice of action -- in short, "voluntariness." According to the ordinarily controlling principles of evidence, this would suggest that the individual, who is peculiarly equipped to clarify an ambiguity in the meaning of outward events, should have the burden of proving what his state of mind was. See Selma, Rome & Dalton R. Co. v. United States, 139 U.S. 560, 567-568. Moreover, any other evidence of his state of mind, outside of his own mental disclosures, will often be found only abroad, where the Government may have no facilities for conducting the necessary investigation. The Court should hesitate long before imposing on the Government, by a generalized, uncritical formula, a burden so heavy that the will of Congress becomes incapable of sensible, rational, fair enforcement.

Where an individual engages in conduct by command of a penal statute of another country to whose laws he is subject, the gravest doubt is cast on the applicability of the normal assumption -- even in a prosecution for murder (see Leland v. Oregon, 343 U.S. 790) -- that what a person does, he does of his own free will. When a consequence as drastic as denationalization may be the effect of such conduct, it is not inappropriate that the Government should be charged with proving that the citizen's conduct was a response, not to the command of the statute, but to his own direction. The ready provability of the critical fact -- existence of an applicable law, particularly a criminal law, commanding the act in question -- provides protection against shifting this burden to the Government on the basis of a frivolous assertion of the defense of duress. Accordingly, the Government should, under the circumstances of this case, have the burden of proving by clear, convincing and unequivocal evidence that the citizen voluntarily performed an act causing expatriation.

Since the courts below were not guided by this formulation, the judgment should not be allowed to stand. However, the Government should not be denied a further opportunity to bring forward the necessary proof if it is able to do so. Whether, in other classes of cases in which the defense of duress is asserted, the Government should have the burden of proving its absence is a question the Court need not -- and, therefore, should not -- reach. For that reason, I concur in the result announced but cannot join the opinion of the Court.

[Footnote 1] According to a stipulation of the parties in the record, the Military Service Law of Japan provided punishment of up to three years of penal servitude for persons evading military service.

[Footnote 2] There does not seem to be any explicit basis in the record for the trial court's finding (Finding of Fact No. III) that petitioner made the trip to Japan "knowing at that time that he was likely to be called for military service in the Japanese Armed Forces."

MR. JUSTICE HARLAN, whom MR. JUSTICE CLARK joins, dissenting.

The central question in this case is simply whether Nishikawa's service in the Japanese Army can be said to be "voluntary" when the record contains virtually nothing more in the way of proof than that he went to Japan from this country in 1939 and was inducted into the army pursuant to a conscription law of Japan without any protest on his part.

Beyond establishing that he was drafted without protest. Nishikawa's testimony should be disregarded, for the District Court expressly stated that it disbelieved his explanations as to why he had not sought the aid of American authorities in Japan or otherwise attempted to protest or prevent his induction, and the Court of Appeals has affirmed. Particularly when credibility is in issue we should not set ourselves against the factual determinations of the trial court, which had the great advantage of hearing and observing Nishikawa on the witness stand.

The Courts of Appeals have divided on the question whether proof of conscription, in the absence of anything more on either side, precludes a finding that service in a foreign army was voluntary. The Second and Third Circuits have held that it does. Augello v. Dulles, 220 F.2d 344; Lehmann v. Acheson, 206 F.2d 592; Perri v. Dulles, 206 F.2d 586. The District of Columbia Circuit has ruled that "[d]uress cannot be inferred from the mere fact of conscription." Acheson v. Maenza, 92 U.S. App. D.C. 85, 90, 202 F.2d 453, 458; Alata v. Dulles, 95 U.S. App. D.C. 182, 221 F.2d 52; but see Bruni v. Dulles, 98 U.S. App. D.C. 358, 235 F.2d 855.1

Moved by the consideration that a contrary rule would lead to the "drastic" consequence of denationalization, the Court holds that (1) the fact that Nishikawa was conscripted into the Japanese Army precluded the District Court from finding that his service was voluntary, in the absence of the Government's showing something more than that he failed to take any steps to prevent or protest his induction; and (2) the Government has the burden of proving voluntariness in all denationalization cases once the issue of duress has been "injected" into the case. I too am not insensitive to the high value of American citizenship, but find myself compelled to dissent because in my opinion the majority's position can be squared neither with congressional intent nor with proper and well-established rules governing the burden of proof on the issue of duress.

I.

To permit conscription without more to establish duress unjustifiably limits, if it does not largely nullify, the mandate of 401 (c). By exempting from the reach of the statute all those serving in foreign armies as to whom no more has been shown than their conscription, the Court is attributing to Congress the intention to permit many Americans who served in such armies to do so with impunity. There is no solid basis for such a restrictive interpretation. By the time the Nationality Act of 1940 was passed, conscription and not voluntary enlistment had become the usual method of raising armies throughout the world, and it can hardly be doubted that Congress was aware of this fact. In view of this background it is farfetched to assume that Congress intended the result reached by the Court, a result plainly inconsistent with the even-handed administration of 401 (c). Moreover, the very terms of the section, which refer to both "entering" and "serving in" foreign armed forces, are at odds with such an intention.

II.

Although the Court recognizes the general rule that consciously performed acts are presumed voluntary, see 3 Wigmore, Evidence (3d ed.), 860; Fed. Rules Civ. Proc., 8 (c), it in fact alters this rule in all denationalization cases by placing the burden of proving voluntariness on the Government, thus relieving citizen-claimants in such cases from the duty of proving that their presumably voluntary acts were actually involuntary.2

One of the prime reasons for imposing the burden of proof on the party claiming involuntariness is that the evidence normally lies in his possession. This reason is strikingly applicable to cases of the kind before us, for evidence that an individual involuntarily served in a foreign army is peculiarly within his grasp, and rarely accessible to the Government. Nishikawa's case amply illustrates the proposition. In the eight months that passed between his notice to report for a physical examination and his actual induction Nishikawa could have taken a variety of steps designed to prevent his conscription, any of which would have been persuasive evidence of the involuntary character of his service. For example, he could have sought to return to the United States, to renounce his Japanese nationality, to advise Japanese officials that he was an American citizen, to enlist the assistance of American Consular officials in Japan, or to employ the aid of friends or relatives in the United States.3 Nishikawa admits that he did none of these things. But if he claimed that he had, is it not apparent that he and not the Government is the logical party to bring forward the pertinent evidence? In such circumstances it seems to me the better course to require Nishikawa to prove his allegation of duress rather than to impose on the Government the well-nigh impossible task of producing evidence to refute such a claim.

For both of the reasons set forth above I think that the finding of the District Court that Nishikawa served in the Japanese Army without duress should not be disturbed.

In considering 401 (c), we ought not to lose sight of the fact that it deals solely with dual nationals, remitting them to the citizenship of the country which they served in time of war. Unlike the majority, I do not believe that this consequence is incommensurate with petitioner's conduct. It seems to me that there is a large measure of justice in relegating Nishikawa solely to his Japanese citizenship, for it is with the armed forces of Japan that he served for more than four years during the heart of the late World War. Nishikawa's service included participation in military action against the United States in the Philippines. There is no suggestion that at any time during this period he ever performed any act indicating disloyalty to Japan or loyalty to the United States.

The Court remands the case presumably to give the Government the opportunity to show that Nishikawa's service with the Japanese Army was voluntary. Surely this is but an empty gesture. The Government can hardly be expected to adduce proof as to occurrences taking place in Japan more than 17 years ago which are now shrouded in obscurity beyond serious hope of detection.

Nishikawa's constitutional contention that Congress lacked power to enact 401 (c) is, in my view, foreclosed by Perez v. Brownell, ante, p. 44, decided this day.

I would affirm the judgment of the Court of Appeals.

[Footnote 1] See also Hamamoto v. Acheson, 98 F. Supp. 904. Compare Acheson v. Okimura, 342 U.S. 899; Acheson v. Murata, 342 U.S. 900, and the dissenting opinion in Mandoli v. Acheson, 344 U.S. 133, 139. As we read Gonzales v. Landon, 350 U.S. 920, cited in the majority opinion, that case related simply to the standard, and not to the burden, of proof in denationalization cases.

[Footnote 2] The Court not only reaches a conclusion inconsistent with the usual rules governing burden of proof, but does so in the face of 402 of the Nationality Act, which provides in part: "A national of the United States who was born in the United States . . . shall be presumed to have expatriated himself under subsection (c) or (d) of section 401, when he shall remain for six months or longer within any foreign state of which he or either of his parents shall have been a national according to the laws of such foreign state . . . and such presumption shall exist until overcome whether or not the individual has returned to the United States." 54 Stat. 1137, 1169. Nishikawa was in Japan for 10 months before he even received notice to report for physical examination in the draft. He was inducted over 18 months after his arrival in Japan. This Court held in Kawakita v. United States, 343 U.S. 717, 730: "Section 402 does not enlarge 401 (c) or (d); it creates a rebuttable presumption of expatriation; and when it is shown that the citizen did no act which brought him under 401 (c) or (d), the presumption is overcome."

[Footnote 3] It is of course quite irrelevant that any steps taken by Nishikawa to forestall his induction may have been in vain. Whether successful or not, they would certainly have reflected his unwillingness to serve in the Army of Japan.