V.  In the fore front, both of the Fourteenth Amendment of the Constitution,
and of the Civil Rights Act of 1866, the fundamental principle of citizenship
by birth within the dominion was reaffirmed in the most explicit and
comprehensive terms.

  The Civil Rights Act, passed at the first session of the Thirty-ninth
Congress, began by enacting that "all persons born in the United States, and
not subject to any foreign power, excluding Indians not taxed, are hereby
declared to be citizens of the United States; and such citizens, of every race
and color, without regard to any previous condition of slavery or involuntary
servitude, except as a punishment for crime whereof the party shall have been
duly convicted, shall have the same right, in every State and Territory in the
United States, to make and enforce contracts, to sue, be parties and give
evidence, to inherit, purchase, lease, sell, hold and convey real and personal
property, and to full and equal benefit of all laws and proceedings for the
security of person and property, as is enjoyed by white citizens, and shall be
subject to like punishment, pains and penalties, and to none other, any law,
statute, ordinance, regulation or custom, to the contrary notwithstanding."
Act of April 9, 1866, c. 31, Section 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an ordinary act of legislation, which might be repealed by any subsequent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 [676] 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 on the face of the amendment,
as well as from the history of times, this was not intended to impose any new
restrictions upon citizenship, or to prevent any persons from becoming
citizens by the fact of birth within the United States, who would thereby have
become citizens according to the law existing before its adoption.  It is
declaratory in form, and enabling and extending in effect.  Its main purpose
doubtless was, as has been often recognized by this court, to establish the
citizenship of free negroes, which had been denied in the opinion delivered by
Chief Justice Taney in Dred Scott v. Sandford, (1857) 19 How. 393; and to put
it beyond doubt that all blacks, as well as whites, born or naturalized within
the jurisdiction of the United States , are citizens of the United States.
The Slaughterhouse Cases, (1873) 16 Wall. 36, 73; Strauder v. West Virginia,
(1879) 100 U.S. 303, 306; Ex parte Virginia, (1879) 100 U.S. 339, 345; Neal v.
Delaware, (1880) 103 U.S. 370, 386; Elk v. Wilkins, (1884) 112 U.S. 94, 101.
But the opening words, "All persons born," are general, not to say universal,
restricted only by place and jurisdiction, and not by color or race--as was
clearly recognized in all the opinions delivered in The Slaughterhouse Cases,
above cited.

  In those cases, the point adjudged was that a statute of Louisiana, granting
to a particular corporation the exclusive right for twenty-five years to have
and maintain slaughterhouses within a certain, district including the city of
New Orleans, requiring all cattle intended for sale or slaughter in that
district to be brought to the yards and slaughterhouses of the grantee,
authorizing all butchers to slaughter their cattle there, and empowering the
grantee to exact a reasonable fee for each animal slaughtered, was within the
police powers of the State, and not in conflict with the Thirteenth Amendment
of the Constitution as creating an involuntary servitude, nor with the
Fourteenth Amendment as abridging the privileges or immunities of citizens of
the United States, 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."  16 Wall. 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. 95, 11  [678]  Mr.
Justice Bradley also said:  "The question is now settled by the Fourteenth
Amendment itself, that citizenship of the United States is the primary
citizenship in this country; and that state citizenship is secondary and
derivative, depending upon citizenship of the United States and the citizen's
place of residence.  The States have not now, if they ever had, any power to
restrict their citizenship to any classes or persons."  16 Wall. 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 or implied.  Our duty is to execute the law, not to make it.  The
protection provided was not intended to be confined to those of any particular
race or class, but to embrace equally all races, classes and conditions of
men."  16 Wall. 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 an 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 consults together--whereas it was then well
settled law, as has since been recognized in a judgment of this court in which
Mr. Justice Miller concurred, that consuls, as such, and unless expressly
invested with a diplomatic character in addition to their ordinary powers, are
not considered as entrusted with the authority to represent their sovereign in
his intercourse with foreign States or to vindicate his prerogatives, or
entitled by the law of nations to the privileges and immunities of
ambassadors or public ministers, but are subject to the jurisdiction, civil
and criminal, of the courts of the country in which they reside.  1 Kent Com.
44; Story Conflict of Laws, Section 48; Wheaton International Law, (8th ed.)
Section 249; The Anne, (1818) e Wheat. 435, 445, 446; Gittings v. Crawford,
(1838) Taney, 1, 10; In re Baiz, (1890) 135 U.S. 403, 424.

  In weighing a remark uttered under such circumstances, it is well to bear in
mind the often quotes 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 Slaughterhouse Cases, understood the court to be committed
to the view that all children born in the United States of citizens or
subjects of foreign States were excluded from the operation of the first
sentence of the Fourteenth Amendment, is manifest from a unanimous judgment of
the court, delivered but two years later, while all those judges but Chief
Justice Chase were still on the bench, in which Chief Justice Waite said:
"Allegiance and protection are, in this connection" (that is, in relation to
citizenship,) "reciprocal obligations.  The one is a compensation for the
other:  allegiance for protection, and protection for allegiance."  "At common
law, with the nomenclature of which the framers of the Constitution were
familiar, it was never doubted that all children, born in a country, of [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, in
which it was decided than 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 form his
tribe, and has 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 persons
according to whose numbers representatives in Congress and direct taxes were
apportioned among the several States, and Congress was empowered to regulate
commerce, not only "with foreign nations," and among the [681] 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 immediately allegiance to their several tribes, and were not part
of the people of the United States; that the alien and dependent condition of
the members of one of those tribes could not be put off at their own will,
without the action or assent of the United States; and that they were never
deemed citizens, except when naturalized, collectively or individually, under
explicit provisions of a treaty, or of an act of Congress; and, therefore,
that "Indians born within the territorial limits of the United States, members
of, and owing immediate allegiance to, one of the Indian tribes (an alien,
though dependent, power), although in a geographical sense born in the United
States, are no more `born in the United States, and subject to the
jurisdiction thereof,' within the meaning of the first section of the
Fourteenth Amendment, than the children of subjects of any foreign government
born within the domain of that government, or the children born within the
United States of ambassadors or other public ministers of foreign nations."
And it was observed that the language used, in defining citizenship, in the
first section of the Civil Rights Act of 1866, by the very Congress which
framed the Fourteenth Amendment, was "all persons born in the United States,
and not subject to any foreign power, excluding Indians not taxed."  112 U.S.
99-103.

  Mr. Justice Harland 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 the
act, national citizenship was conferred directly upon all persons in this
country, of whatever race (excluding only `Indians not taxed'), who were born
within [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.

  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
Indian tribes, standing in a peculiar relation to the National Government,
unknown to the common law,) the two classes of cases--children born of alien
enemies in hostile occupation, and children of diplomatic representatives of a
foreign State--both of which, as has already been shown, by the law of
England, and by our own law, from the time of the first settlement of the
English colonies in America, had been recognized exceptions to the fundamental
rule of citizenship by birth within the country.  Calvin's Case, 7 Rep. 1,
18b; Cockburn on Nationality, 7; Dicey Conflict of Laws, 177; Inglis v.
Sailors' Snug Harbor, 3 Pet. 99, 155; 2 Kent Com. 39, 42.

  The principles upon which each of those exceptions rests were long ago
distinctly stated by this court.

  [683] In United States v. Rice, (1819) 4 Wheat. 246, goods imported into
Castine, in the State of Maine, while it was in the exclusive possession of the
British authorities during the last war with England, were held not to be
subject to duties under the revenue laws of the United States, because, as was
said by Mr. Justice Story in delivering judgment:  "By the conquest and
military occupation of Castine, the enemy acquired that firm possession which
enabled him to exercise the fullest rights of sovereignty over that place.
The sovereignty of the United States over the territory was, of course,
suspended, and the laws of the United States could no longer be rightfully
enforced there, or be obligatory upon the inhabitants who remained and
submitted t 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
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 United States v. Rice, above cited.  But in all other respects it
covered the whole question of what persons within the territory of the United
States are subject to the jurisdiction thereof.

  The Chief Justice first laid down the general principle:  "The jurisdiction
of the nation within its own territory is [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 the 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
extra-territorial 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 [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 extra-territorial, and therefore, in point of law, not within the
jurisdiction of the sovereign at whose court he resides; still the immunity
itself is granted by the governing power of the nation to which the minister
is deputed.  This fiction of exterritoriality could not be erected and
supported against the will of the sovereign of the territory.  He is supposed
to assent to it."  "The assent of the sovereign to the very important and
extensive exemptions from territorial jurisdiction, which are admitted to
attach to foreign ministers, is implied from the considerations that, without
such exemption, every sovereign would hazard his own dignity by employing a
public minister abroad.  His minister would owe temporary and local allegiance
to a foreign prince, and would be less competent to the objects of his
mission.  A sovereign committing the interests of his nation with a foreign
power, to the care of a person whom he has selected for that purpose, cannot
intend to subject his minister in any degree to that power; and, therefore, a
consent to receive him, implies a consent that he shall possess those
privileges which his principal intended he should retain--privileges which are
essential to the dignity of his sovereign, and to the duties he is bound to
perform."  7 Cranch, 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
[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.
United States, (1872) 16 Wall. 147, 155; Radich v. Hutchins, (1877) 95 U.S.
210; Wildenhus's Case, (1887) 120 U.S. 1; Chae Chan Ping v. United States,
(1889) 130 U.S. 581, 603, 604.

  From the first organization of the National Government under the
Constitution, the naturalization acts of the United States, in providing for
the admission of aliens to citizenship by judicial proceedings, uniformly
required every applicant to have resided for a certain time "within the limits
and under the jurisdiction of the United States;" and thus applied the words
"under the jurisdiction of the United States" to aliens residing here before
they had taken an oath to support the Constitution of the United States, or
had renounced allegiance [687] to a foreign government.  Acts of March 26,
1790, c. 3; January 29, 1795, c. 20, Section 1; June 18, 1798, c. 54, Sections
1, 6; 1 Stat. 103, 414, 566, 568; April 14, 1802, c. 28, Section 1; 2 Stat.
153; March 22, 1816, c. 32, Section 1; 3 Stat. 258; May 24, 1828, c. 116,
Section 2; 4 Stat. 310; Rev. Stat. Section 2165.  And, from 1795, the
provisions of those acts, which granted citizenship to foreign-born children
of American parents, described such children as "born out of the limits and
jurisdiction of the United States."  Acts of January 29, 1795, c. 20, Section
3; 1 Stat. 415; April 14, 1802, c. 28 Section 4; 2 Stat. 155; February 10,
1855, c. 71; 10 Stat. 604; Rev. Stat. Sections 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 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 [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.