tribunals should not have been given final authority to determine as to the existence of this federal citizenship, any more than they are permitted in the case of a state law alleged to impair the obligation of a contract to determine whether a contract exists to be impaired, or, if it exists, whether it has in fact been impaired. But in Boyd v. Nebraska the real question was as to the existence of a qualification for a state office the qualifications for which, it was undisputed, the State might determine as it should see fit. The reasoning of Justice Field in his dissenting opinion upon this point seems incontrovertible.1o

$132. Wong Kim Ark Case.

In the case of United States v. Wong Kim Ark,20 decided in 1898, the Supreme Court was called upon to determine whether, under the terms of the Fourteenth Amendment, persons born in the United States of alien parents, are citizens of the United States. In this case the question was as to the citizenship of a child of Chinese parents who not only were not citizens of the United States, but could not, under the existing laws, become such by naturalization. In sustaining Ark's citizenship the court held that the clause of the Amendment declaring that "ail persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States," is but declaratory of the common law principle unreservedly accepted in England since Calvin's case (the case of Postnati, decided in 1608) and in the United States since the Declaration of Independence, that all persons, irrespective of the nationality of their parents born within the territorial limits of a State, are ipso facto, citizens of that State. The court admitted that the principle of the Roman law according to which the citizenship of the child follows that of the parent, irrespective of the place of birth, had been accepted by certain of the European nations, but denied that this principle had become a true and universal rule of inter19 See ante, § 83.

20 169 U. S. 649; 18 Sup. Ct. Rep. 456; 42 L. ed. 890.

national law, or if it had, that it had thereby superseded the rule of the common law.21

The opinion declares: "The first section of the Fourteenth Amendment of the Constitution begins with the words, 'All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.' As appears 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

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21 The court say: 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 nativeborn children of foreign parents in Germany, Switzerland, Sweden, and Norway, yet it appears still to have been conferred upon such children in Holland, Denmark, and Portugal, and, when claimed under certain specified conditions, in France, Belgium, Spain, Italy, Greece, and Russia. Cockburn, Nationality, 14-21. There is, therefore, little ground for the theory that, at the time of the adoption of the Fourteenth Amendment of the Constitution of the United States, there was any settled and definite rule of international law, generally recognized by civilized nations, inconsistent with the ancient rule of citizenship by birth within the dominion. 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. . . . So far as we are informed, there is no authority, legislative, executive, or judicial, in England or America which maintains or intimates that the statutes (whether considered as declaratory, or as merely prospective), conferring citizenship on foreign-born children of citizens, have superseded or restricted, in any respect, the established rule of citizenship by birth within the dominion. Even those authorities in this country which have gone the farthest toward holding such statutes to be declaratory of the common law, have distinctly recognized and emphatically asserted the citizenship of nativeborn children of foreign parents. 2 Kent, Com. 39, 50, 53, 258, note; Lynch v. Clarke (1 Sandf. Ch. 583, 649); Ludlam v. Ludlam (26 N. Y. 356) [84 Am. Dec. 193]."

citizens according to the law existing before its adoption." It is declaratory in form, and enabling and extending in effect. Its main purpose doubtless was, as has been often recognized by this court, to establish the citizenship of free negroes, which had been denied in the opinion delivered by Chief Justice Taney in Dred Scott v. Sandford, 1857,23 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.24 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.”

Regarding the phrase of the Fourteenth Amendment "subject to the jurisdiction thereof," the court say: "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 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."25

22 For comments on the "history of the times," and the debates in Congress as showing the intended meaning of the citizenship clause of the Amendment, see pages 697-699 of the opinion in the Wong Kim Ark Case. See also Van Dyne, Citizenship of the United States, chapter I.

23 19 How. 393; 15 L. ed. 691.

24 Citing The Slaughter House Cases, 16 Wall. 36; 21 L. ed. 394; Strauder v. West Virginia, 100 U. S. 303; 25 L. ed. 664; Ex parte Virginia. 100 U. s. 339; 25 L. ed. 676; Neal v. Delaware, 103 U. S. 370; 26 L. ed. 567; Elk v. Wilkins, 112 U. S. 94; 5 Sup. Ct. Rep. 41; 28 I. ed. 643.

25 Citing Calvin's Case, 7 Coke, 118b; Cockburn, Nationality, 7; Dicey, Conf. Laws, 177; Inglis v. Sailor's Snug Harbor, 3 Pet. 99; 7 L. ed. 617; 2 Kent, Com. 39.

"The power of naturalization, vested in Congress by the Constitution," the opinion continues, "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 which a native might sue.' 26 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 the 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 afterward, there was no statute authorizing persons of that race to be naturalized. If the omission or the refusal of Congress to permit certain 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 26 Osborn v. U. S. Bank, 9 Wheat. 738; 6 L. ed. 204.

persons only, to defeat the main purpose of the constitutional amendment. The fact, therefore, that acts of Congress or treaties have 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.""

The acceptance of the foregoing doctrine, it was held, does not prevent the United States from providing that children born. abroad of American citizens shall be considered citizens of the United States.27

27 Chief Justice Fuller rendered in the Wong Kim Ark case a dissenting opinion concurred in by Justice Harlan. These justices took the position that nationality was essentially a political idea and as such the constitutional provisions regarding it were to be interpreted in the light of international rather than English municipal provisions. Obviously," they said, "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 distinguished 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."

This affirmative acceptance of the English common law upon this subject, these justices are unable to find. Upon the contrary, they find in the executive practice and various legislative acts of the United States Government rejection of important parts of the English doctrine of citizenship. Thus, for example, since the Declaration of Independence, this country has consistently rejected what, until 1870, was the doctrine of inalienable allegiance; that is, the doctrine denying the general right of expatriation. Furthermore, it is asserted in this dissenting opinion, that the act of Congress providing that children born abroad of American parents are American citizens, is an evidence that the common-law doctrine of jus soli, as distinguished from the civil rule of jus sanguinis, was not accepted as the general principle governing natural citizenship. After a review of the treaties of the United States, with China and various acts of Congress and decisions of the courts with reference thereto, Chief Justice Fuller concludes: "Did the Fourteenth Amendment impose the original English common-law rule on this country? Did the Amendment operate to abridge the treaty-making power, or the power to establish an uniform rule of naturalization? I insist that it cannot be maintained that this government is unable through the action of the President, concurred in by the Senate, to make a treaty with a foreign government providing that the