regard to the various amendments which had been proposed to the 1st section of the act, Senator Trumbull said: "The senator from Missouri and myself desire to arrive at the same point precisely, and that is to make citizens of everybody born in the United States who owe allegiance to the United States. We cannot make a citizen of the child of a foreign minister who is temporarily residing here. There is a difficulty in framing the amendment so as to make citizens of all the people born in the United States, and who owe allegiance to it. I thought that might, perhaps, be the best form in which to put the amendment at one time, that all persons born in the United States, and owing allegiance thereto, are hereby declared to be citizens;' but, upon investigation, it was found that a sort of allegiance was due to the country from persons temporarily residing in it whom we would have no right to make citizens, and that that form would not answer. Then it was suggested that we should make citizens of all persons born in the United States not subject to any foreign power or tribal authority. The objection to that was, that there were Indians not subject to tribal authority, who yet were wild and untamed in their habits, who had by some means or other become separated from their tribes, and were not under the laws of any civilized community, and of whom the authorities of the United States took no jurisdiction. Then it was proposed to adopt the amend ment as it now stands,-that all persons born in the United States, not subject to any foreign power, excluding Indians not taxed, shall be citizens." Id. p. 572.

When the bill came back to the House with the amendments made by the Senate, Mr. Wilson, of Iowa, chairman of the house judiciary committee, said: "The 1st section of the bill contains the following declaration concerning citizenship: 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.

This provision, I maintain, is merely declaratory of what the law now is." He cited, among other authorities, the following quotation from Rawle on the Constitution, p. 80: "Every person born within the United States, its territories or districts, whether the parents are citizens or aliens, is a natural-born citizen in the sense of the Constitution, and entitled to all the rights and privileges appertaining to that capacity." Id. pt. 2, pp. 1115, 1117.

Mr. Thayer, of Pennsylvania, said that the bill was an enactment simply declaring that all men born upon the soil of the United States shall enjoy the fundamental rights of citizenship. Id. p. 1151.

Even as

Mr. Broomall said: "The first provision of the bill declares that all persons born in the United States, and not subject to any foreign power, are citizens of the United States. As a positive enactment, this would hardly seem necessary. a declaration of existing law, a proposition that at most can only be said to embrace the true meaning of the word 'citizen' would seem to find its more appropriate place in the elementary treatises upon law, rather than upon the statute books. What is a citizen but a human being who, by reason of his being born within the jurisdiction of a government, owes allegiance to that government?" Id. p. 1262.

The 14th Amendment was pending before the same Congress which enacted the civil rights law. Objections were made to that law, and great doubt was expressed as to its validity. To obviate the objections which had been raised to its 1st section, and to place the common rights of American citizenship under the protection of the national government, it was deemed wise to incorporate the declaration in the fundamental law. The phraseology adopted in the amendment is somewhat different from that of the civil rights act. For the qualifying phrase,

"not subject to any foreign power," is substituted the affirmative one, "subject to the jurisdiction thereof." The words, "excluding Indians not taxed," are omitted as unnecessary, such persons not being deemed to be "subject to the jurisdiction" of the United States. The amendment also declares that all persons who are citizens of the United States by reason of their birth or naturalization are also citizens of the state in which they reside.

The amendment as it came from the House contained no definition of citizenship. Senator Howard, of Michigan, proposed to insert such a definition. He said: "The first amendment is to § 1, declaring that 'all persons born in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the states wherein they reside.'* This amendment which I have offered is simply declaratory of what I regard as the law of the land already,—that every person born within the limits of the United States, and subject to their jurisdiction, is, by virtue of natural law and national law, a citizen of the United States. This will not, of course, include persons born in the United States who are foreigners, aliens, who belong to the families of ambassadors or foreign ministers accredited to the government of the United States, but will include every other class of persons. It settles the great question of citizenship, and removes all doubt as to what persons are, or are not, citizens of the United States. This has long been a great desideratum in the jurisprudence and legislation of this country." Cong. Globe, 1st Session, 39th Congress, pt. 4, p. 2890.

Senator Cowan asked whether the child of the Chinese immigrant, born in California, was a citizen.

*The amendment as finally adopted contained the language proposed by Senator Howard, except that the words "or naturalized" were inserted, without objection or discussion, at the suggestion of Mr. Fessenden.

Senator Conness said that it was proposed by the amendment to declare that the children begotten of Chinese parents in California shall be citizens. He added: "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." Id. p.

2891.

Mr. Doolittle said that the civil rights act was the forerunner of the constitutional amendment, which was brought forward to give validity to the statute. Id. p. 2896.

Mr. Johnson said: "The Constitution as it now stands recognizes a citizenship of the United States. .. But there is no definition in the Constitution as it now stands, as to citizenship. Who is a citizen of the United States, is an open question. The decision of the courts, and the doctrine of the commentators, is that every man who is a citizen of a state becomes ipso facto a citizen of the United States; but there is no definition as to how citizenship can exist in the United States except through the medium of citizenship in a state. Now, all that this amendment provides is that all persons born in 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. That would seem to be, not only a wise, but a necessary, provision. If there are to be citizens of the United States entitled everywhere to the character of citizens of the United States, there should be some certain definition of what citizenship is, what has created the character of citizen as between himself and the United States; and the amendment says that citizenship may depend upon birth, and I know of no better way to

give rise to citizenship than the fact of birth within the territory of the United States, born of parents who at the time were subject to the authority of the United States." Id. 2893.

These quotations from the debates in Congress plainly show the intention of the framers of the civil rights act, and of the amendment to the Constitution, to reaffirm the fundamental principle of citizenship by birth.

3. Children born in United States of alien parentage.- The Federal courts have almost uniformly held that birth in the United States, of itself, confers citizenship. In two cases the courts have used language which has been relied upon in support of a contrary view. These will now be considered.

In delivering the opinion of the court in the Slaughter-House Cases, 16 Wall. 73, 21 L. ed. 408, Mr. Justice Miller said: "The phrase, 'subject to the jurisdiction,' was intended to exclude from its operation children of ministers, consuls, and citizens or subjects of foreign states born within the United States.”

This has been cited in support of the contention that the children born in this country to aliens are not citizens of the United States. It is to be observed, however, that this is only a dictum. The question was not involved in the decision of the case before the court. The classing together of foreign ministers and consuls, when it was at the time well-settled law that consuls, as such, and unless expressly invested with a diplomatic character, are not entitled, by the law of nations, to the privileges and immunities of ambassadors, shows that the statement was not formulated with the same care and exactness as if the case before the court had called for a precise definition of the phrase. And the fact that neither Mr. Justice Miller, nor any of the justices who took part in the decision above referred to, understood the court to be committed to the view that children born in the United States of alien parents were excluded from the operation of the