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 III had been repealed, this court,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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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