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 the 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 of
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 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 an 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, not withstanding 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.

  [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, c. 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 to 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 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.
Lit. 128b,) and that every person owes allegiance to the country of his
birth."  13 Opinions of Attorneys General, 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 [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 many 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 art. 2, sect. 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:

  "It may also endow with the rights and privileges of its citizenship persons
residing 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.

  [691] "It is evident from the proviso in the act of 10th February, 1855,
viz., `that the rights of citizenship shall not descend to persons whose
fathers never resided in the United States,' that the law-making 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 conclusion of
Attorney General Hoar in his opinion above cited.  U.S. Foreign Relations,
1886, p. 303; 2 Calvo Droit Internation, Section 546.

  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 British 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 extra-territorially 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 of
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 [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) 29 Vroom (58 N.J.
Law), 36, 39, 40.

  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 Rep. 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 quotes, "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 [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."  Ex. Doc. H. R.
No. 10, 1st sess. 32d Congress, p. 4; 6 Webster's Works, 526; United States v.
Carlisle, 16 Wall. 147, 155; Calvin's Case, 7 Rep. 61; Ellesmere on Postnati,
63; 1 Hale P. C. 62; 4 Bl. Com. 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; Law Ow Vew v.
United States, (1892) 144 U.S. 47, 61, 62; Fong Yue Ting v. United States,
(1893) 149 U.S. 698, 724; Lem Moon Sing v. United States, (1895) 158 U.S. 538,
547; Wong Wing v. United States, (1896) 163 U.S. 228, 238.

  In Yick Wo v. Hopkins the decision was that an ordinance [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.

  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, reenacting 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 [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 hardy
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. United States, (1891) 140 U.S. 417, 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
United States," [697] 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.

  In State v. Ah Chew, (1881) 16 Nevada, 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, subject of the Emperor of China, is a native-born citizen
of the United States.  In re Look Tin Sing, (1884) 10 Sawyer, 353; Ex parte
Chin King, (1888) 13 Sawyer, 333; In re Yung Sing Hee, (1888) 13 Sawyer, 482; In
re Wy Shing, (1888) 13 Sawyer, 530; Gee Fook Sing v. United States, (1892) 7
U.S. App. 27; In re Wong Kim Ark, (1896) 71 Fed. Rep. 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; [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.  Congressional Globe, 39th Congress,
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 of the United States so as to prevent 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 the [699] United States to be entitled to civil rights
and to equal protection before the law with others." Congressional Globe, 39th
Congress, 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 fourteen 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.  And the right of
the United States, as exercised by and under those afts, 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 domicil 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. United States, 130 U.S. 581;
Nishimura Ekiu v. United States, 142 U.S. 651; Fong Yue Ting v. United States,
149 U.S. 698; Lem Moon Sing v. United States, 158 U.S. 538; Wong Wing v.
United States, 163 U.S. 228.

  In Fong Yue Ting v. United States, 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 [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 rest
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.

  In Lem Moon Sing v. United States, the same principles were reaffirmed, and
were applied to a Chinese person, born in China, who had acquired a commercial
domicil 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 reenter 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 reenter 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 domicil 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 [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
reenter 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.