It is true that Chinese persons born in China cannot be naturalized, like
other aliens, by proceedings under the naturalization laws.  But this is for
want of any statute or treaty authorizing or permitting such naturalization,
as will appear by tracing the history of the statutes, treaties and decisions
upon that subject--always bearing in mind that statutes enacted by Congress,
as well as treaties made by the President and Senate, must yield to the
paramount and supreme law of the Constitution.

  The power, granted to Congress by the Constitution, "to establish an uniform
rule of naturalization," was long ago adjudged by this court to be vested
exclusively in Congress.  Chirac v. Chirac, (1817)  2 Wheat. 259.   For many
years after the establishment of the original Constitution, and until two
years after the adoption of the Fourteenth Amendment, Congress never
authorized the naturalization of any but "free white person."  Acts of March
26, 1790, c. 3, and January 29, 1795, c. 20; 1 Stat. 103, 414; April 14, 1802,
c. 28, and March 26, 1804, c. 47; 2 Stat. 153, 292; March 22, 1816, c. 32; 3
Stat. 258; May 26, 1824, c. 186, and May 24, 1828, c. 116; 4 Stat. 69, 310.
By the treaty between the United States and China, made July 28, 1868, and
promulgated February 5, 1870, it was provided that "nothing herein contained
shall be held to confer naturalization upon citizens of the United States in
China, nor upon the subjects of China in the United States."  16 Stat. 740.
By the act of July 14, 1870, c. 254, Section 7, for the first time, the
naturalization laws were "extended to aliens of African nativity and to
persons of African descent."  16 Stat. 256.  This extension, as embodied in
the Revised Statutes, took the form of providing that those laws should "apply
to aliens [being free white persons, and to aliens] of African nativity and to
persons of African descent;" and it was amended by the act of February [702]
18, 1875, c. 80, by inserting the words above printed in brackets.  Rev. Stat.
(2d ed.) Section 2169; 18 Stat. 318.  Those statutes were held, by the Circuit
Court of the United States in California, not to embrace the Chinese aliens.
In re Ah Yup, (1878) 5 Sawyer, 155.  And by the act of May 6, 1882, c. 126,
Section 14, it was expressly enacted that "hereafter no state court or court
of the United States shall admit Chinese to citizenship."  22 Stat. 61.

  In Fong Yue Ting v. United States, (1893) above cited, this court said:
"Chinese persons not born in this country have never been recognized as
citizens of the United States, nor authorized to become such under the
naturalization laws."  149 U.S. 716.

  The Convention between the United States and China of 1894 provided that
"Chinese laborers or Chinese of any other class, either permanently or
temporarily residing in the United States, shall have for the protection of
their persons and property all rights that are given by the laws of the United
States to citizens of the most favored nation, excepting the right to become
naturalized citizens."  28 Stat. 1211.  And it has since been decided, by the
same judge who held this appellee to be a citizen of the United States by
virtue of his birth therein, that a native of China of the Mongolian race could
not be admitted to citizenship under the naturalization laws.  In re Gee Hop,
(1895) 71 Fed. Rap. 274.

  The Fourteenth Amendment of the Constitution, in the declaration that "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," contemplates two sources of citizenship, and two only:
birth and naturalization.  Citizenship by naturalization can only be acquired
by naturalization under the authority and in the forms of law.  But
citizenship by birth is established by the mere fact of birth under the
circumstances defined in the Constitution.  Every person born in the United
States, and subject to the jurisdiction thereof, becomes at once a citizen of
the United States, and needs no naturalization.  A person born out of the
jurisdiction of the United States can only become a citizen by being
naturalized, either by treaty, as in the case [703] of the annexation of
foreign territory; or by authority of Congress, exercised either by declaring
certain classes of persons to be citizens, as in the enactments conferring
citizenship upon foreign-born children of citizens, or by enabling foreigners
individually to become citizens by proceedings in the judicial tribunals, as
in the ordinary provisions of the naturalization acts.

  The power of naturalization, vested in Congress by the Constitution, is a
power to confer citizenship, not a power to take it away.  "A naturalized
citizen," said Chief Justice Marshall, "becomes a member of the society,
possessing all the rights of a native citizen, and standing, in the view of
the Constitution, on the footing of a native.  The Constitution does not
authorize Congress to enlarge or abridge those rights.  The simple power of
the National Legislature is to prescribe a uniform rule of naturalization, and
the exercise of this power exhausts it, so far as respects the individual.
The Constitution then takes him up, and, among other rights, extends to him
the capacity of suing in the courts of the United States, precisely under the
same circumstances under which a native might sue."  Osborn v. United States
Bank, 9 Wheat. 738, 827.  Congress having no power to abridge the rights
conferred by the Constitution upon those who have become naturalized citizens
by virtue of acts of Congress, a fortiori no act or omission of Congress, as
to providing for the naturalization of parents or children of a particular
race, can affect citizenship acquired as a birthright, by virtue of the
Constitution itself, without any aid of legislation.  The Fourteenth
Amendment, while it leaves the power, where it was before, in Congress, to
regulate naturalization, has conferred no authority upon Congress to restrict
the effect of birth, declared by the Constitution to constitute a sufficient
and complete right to citizenship.

  No one doubts that the Amendment, as soon as it was promulgated, applied to
persons of African descent born in the United States, wherever the birthplace
of their parents might have been; and yet, for two years afterwards, there was
no statute authorizing persons of that race to be naturalized.  If the
omission or the refusal of Congress to permit certain [704] classes of persons
to be made citizens by naturalization could be allowed the effect of
correspondingly restricting the classes of persons who should become citizens
by birth, it would be in the power of Congress, at any time, by striking
negroes out of the naturalization laws, and limiting those laws, as they were
formerly limited, to white persons only, to defeat the main purpose of the
Constitutional Amendment.

  The fact, therefore, that acts of Congress or treaties have not permitted
Chinese persons born out of this country to become citizens by naturalization,
cannot exclude Chinese persons born in this country from the operation of the
broad and clear words of the Constitution, "All persons born in the United
States, and subject to the jurisdiction thereof, are citizens of the United
States."

  VII.  Upon the facts agreed in this case, the American citizenship which
Wong Kim Ark acquired by birth within the United States has not been lost or
taken away by anything happening since his birth.  No doubt he might himself,
after coming of age, renounce this citizenship, and become a citizen of the
country of his parents, or of any other country; for by our law, as solemnly
declared by Congress, "the right of expatriation is a natural and inherent
right of all people," and "any declaration, instruction, opinion, order or
direction of any officer of the United States, which denies, restricts,
impairs or questions the right of expatriation, is declared inconsistent with
the fundamental principles of the Republic."  Rev. Stat. Section 19999,
reenacting act of July 27, 1868, c. 249, Section 1; 15 Stat. 223, 224.
Whether any act of himself, or of his parents, during his minority, could have
the same effect, is at least doubtful.  But it would be out of place to pursue
that inquiry; inasmuch as it is expressly agreed that this residence has
always been in the United States, and not elsewhere; that each of his
temporary visits to China, the one for some months when he was about seventeen
years old, and the other for something like a year about the time of his
coming of age, was made with the intention of returning, and was followed by
his actual return, to the United States; and "that said Wong Kim Ark has not,
either by himself or his parents acting [705] for him, ever renounced his
allegiance to the United States, and that he has never done or committed any
act or thing to exclude him therefrom."

  The evident intention, and the necessary effect, of the submission of this
case to the decision of the court upon the facts agreed by the parties, were
to present for determination the single question, stated at the beginning of
this opinion, namely, whether a child born in the United States, of parents of
Chinese descent, who, at the time of his birth, are subjects of the Emperor of
China, but have a permanent domicil and residence in the United States, and
are there carrying on business, and are not employed in any diplomatic or
official capacity under the Emperor of China, becomes at the time of his birth
a citizen of the United States.  For the reasons above stated, this court is
of opinion that the question must be answered in the affirmative.

                                                              Order affirmed.


_______________
  *1* Acts of May 6, 1882, c. 126, 22 Stat. 58; July 5, 1884, c. 220, 23 Stat.
115; September 13, 18888, c. 1015, and October 1, 1888, c. 1064, 25 Stat. 476,
504; May 5, 1892, c. 60, 27 Stat. 25; August 18, 1894, c. 301, 28 Stat. 390.


  MR. CHIEF JUSTICE FULLER, with whom concurred MR. JUSTICE HARLAN,
dissenting.

  I cannot concur in the opinion and judgment of the court in this case.

  The proposition is that a child born in this country of parents who were not
citizens of the united States, and under the laws of their own country and of
the united States could not become such--as was the fact from the beginning of
the Government in respect of the class of aliens to which the parents in this
instance belonged--is, from the moment of his birth a citizen of the United
States, by virtue of the first clause of the Fourteenth Amendment, any act of
Congress to the contrary notwithstanding.

  The argument is, that although the Constitution prior to that amendment
nowhere attempted to define the words "citizens of the United States" and
"natural-born citizen" as used therein, yet that it must be interpreted in the
light of the English common law rule which made the place of birth the
criterion of nationality; that that rule "was in force in all [706] the
English colonies upon this continent down to the time of the Declaration of
Independence, and in the United States afterwards, and continued to prevail
under the Constitution as originally established;" and "that before the
enactment of the Civil Rights Act of 1866 and 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."

  Thus the Fourteenth Amendment is held to be merely declaratory except that
it brings all persons, irrespective of color, within the scope of the alleged
rule, and puts that rule beyond the control of the legislative power.

  If the conclusion of the majority opinion is correct, then the children of
citizens of the United States, who have been born abroad since July 28, 1868,
when the amendment was declared ratified, were, and are, aliens, unless they
have, or shall on attaining majority, become citizens by naturalization in the
United States; and no statutory provision to the contrary is of any force or
effect.  And children who are aliens by descent, but born on our soil, are
exempted from the exercise of the power to exclude or to expel aliens, or any
class of aliens, so often maintained by this court, an exemption apparently
disregarded by the acts in respect of the exclusion of persons of Chinese
descent.

  The English common law rule, which it is insisted was in force after the
Declaration of Independence, was that "every person born within the dominions
of the Crown, no matter whether of English or of foreign parents, and, in the
latter case, whether the parents were settled or merely temporarily sojourning
in the country, was an English subject; save only the children of foreign
ambassadors, (who were excepted because their fathers carried their own
nationality with them,) or a child born to a foreigner during the hostile
occupation of any part of the territories of England."  Cockburn on
Nationality, 7.

The tie which bound the child to the Crown was indissoluble.  [707] The
nationality of his parents had no bearing on his nationality.  Though born
during a temporary stay of a few days, the child was irretrievably a British
subject.  Hall on Foreign Jurisdiction, etc.  Section 15.

  The rule was the outcome of the connection in feudalism between the
individual and the soil on which he lived, and the allegiance due was that of
liegement to their liege lord.  It was not local and temporary as was the
obedience to the laws owed by aliens within the dominions of the Crown, but
permanent and indissoluble, and not to be cancelled by any change of time or
place or circumstances.

  And it is this rule, pure and simple, which it is asserted determined
citizenship of the United States during the entire period prior to the passage
of the act of April 9, 1866, and the ratification of the Fourteenth Amendment,
and governed the meaning of the words "citizen of the United States" and
"natural-born citizen" used in the Constitution as originally framed and
adopted.  I submit that no such rule obtained during the period referred to,
and that those words bore no such construction; that the act of April 9, 1866,
expressed the contrary rule; that the Fourteenth Amendment prescribed the same
rule as the act; and that if that amendment bears the construction now put
upon it, it imposed the English common law rule on this country for the first
time and made is "absolute and unbending," just as Great Britain was being
relieved from its inconveniences.

  Obviously, where the Constitution deals with common law rights and uses
common law phraseology, its language should be read in the light of the common
law; but when the question arises as to what constitutes citizenship of the
nation, involving as it does international relations, and political as
contradistinguished from civil status, international principles must be
considered, and, unless the municipal law of England appears to have been
affirmatively accepted, it cannot be allowed to control in the matter of
construction.

  Nationality is essentially a political idea, and belongs to the sphere of
public law.  Hence Mr. Justice Story, in Shanks v. Dupont, 3 Pet. 242, 248,
said that the incapacities of femes [708] covert, at common law, "do not reach
their political rights, nor prevent their acquiring or losing a national
character.  Those political rights do not stand upon the mere doctrines of
municipal law, applicable to ordinary transactions, but stand upon the more
general principles of the law of nations."

  Twiss in his work on the Law of Nations says that "natural allegiance, or
the obligation of perpetual obedience to the government of a country, wherein
a man may happen to have been born, which he cannot forfeit, cancel, or vary
by any change of time, or place, or circumstance, is the creature of civil
law, and finds no countenance in the law of nations, as it is in direct
conflict with the incontestable rule of that law."  Vol. 1, p. 231.

  Before the Revolution, the views of the publicists had been thus put by
Vattel:  "The natives, or natural born citizens, are those born in the country,
of parents who are citizens.  As the society cannot exist and perpetuate
itself otherwise than by the children of the citizens, those children
naturally follow the condition of their fathers, and succeed to all their
rights.  The society is supposed to desire this, in consequence of what it
owes to its own preservation; and it is presumed, as matter of course, that
each citizen, on entering into society, reserves to his children the right of
becoming members of it.  The country of the fathers is therefore that of the
children; and these become true citizens merely by their tacit consent.  We
shall soon see whether, on their coming to the years of discretion, they may
renounce their right, and what they owe to the society in which they were
born.  I say that, in order to be of the country, it is necessary that a
person be born of a father who is a citizen; for, if he is born there of a
foreigner, it will be only the place of his birth, and not his country."  Book
I, c. 19, Section 212.  "The true bond which connects the child with the body
politic is not the matter of an inanimate piece of land, but the moral
relations of his parentage.  . . . follow the condition of their fathers, for
it is not naturally the place of birth that gives rights, but extraction."

  And to the same effect are the modern writers, as for [709] instance, Bar,
who says:  "To what nation a person belongs is by the laws of all nations
closely dependent on a descent; it is determines it--that of the father where
children are lawful, and where they are bastards that of their mother, without
regard to the place of their birth; and that must necessarily be recognized as
the correct canon, since nationality is in its essence dependent on descent."
Int.  Law, Section 31.

  The framers of the Constitution were familiar with the distinctions between
the Roman law and the feudal law, between obligations based on territoriality
and those based on the personal and invisible character of origin, and there
is nothing to show that in the matter of nationality they intended to adhere to
principles derived from regal government, which they had just assisted in
overthrowing.

   Manifestly, when the sovereignty of the Crown was thrown off and an
independent government established, every rule of the common law and every
statute of England obtaining in the Colonies, in derogation of the principles
on which the new government was founded, was abrogated.

  The States, for all national purposes embraced in the Constitution, became
one, united under the same sovereign authority,and governed by the same laws,
but they retained their jurisdiction over all persons and things within their
territorial limits, except where surrendered to the General Government or
restrained by the Constitution, and protection to life, liberty and property
rested primarily with them.  So far as the jus commune, or folk-right,
relating to the rights of persons, was concerned, the Colonies regarded it as
their birthright, and adopted such parts of it as they found applicable to
their condition.  Van Ness v. Pacard, 2 Pet. 137.

  They became sovereign and independent States, and when the Republic was
created each of the thirteen States had its own local usages, customs and
common law, while in respect of the National Government there necessarily was
no general, independent and separate common law of the United States, nor has
there ever been.  Wheaton v. peters, 8 Pet. 591, 658.

  [710] As to the jura coronae, including therein the obligation of
allegiance, the extent to which these ever were applicable in this country
depended on circumstances, and it would seem quite clear that the rule making
locality of birth the criterion of citizenship because creating a permanent
tie of allegiance, no more survived the American Revolution than the same rule
survived the French Revolution.

  Doubtless, before the latter event, in the progress of monarchial power, the
rule which involved the principle of liege homage may have become the rule of
Europe; but that idea never had any basis in the United States.

  As Chief Justice Taney observed in Fleming v. Page, 9 how. 603,618, though
in a different connection:  "It is true that most of the States have adopted
the principles of English jurisprudence, so far as it concerns private and
individual rights.  And when such rights are in question, we habitually refer
to the English decisions, not only with respect, but in many cases as
authoritative.  But in the distribution of political power between the great
departments of government, there is such a wide difference between the power
conferred on the President of the United States and the authority and
sovereignty which belong to the English Crown, that it would be altogether
unsafe to reason from any supposed resemblance between them, either as regards
conquest in war, or any other subject where the rights and powers of the
executive arm of the government are brought into question.  Our own
Constitution and form of government must be our only guide."

  And Mr. Lawrence, in his edition of Wheaton (Lawrence's Wheaton, p. 920),
makes this comment;  "There is, it is believed, as great a difference between
the territorial allegiance claimed by an hereditary sovereign on feudal
principles, and the personal right of citizenship participated in by all the
members of the political community, according to American institutions, as
there is between the authority and sovereignty of the Queen of England, and
the power of the American President; and the inapplicability of English
precedents is as clear in the one case as in the other.  The same view, with
particular application to naturalization, was early taken by  [711] the
American commentator on Blackstone.  Tucker's Blackstone, Vol. 1, Pt. 2, Appx.
p. 96."

  Blackstone distinguished allegiance into two sorts, the one natural and
perpetual; the other local and temporary.  Natural allegiance, s-called, was
allegiance resulting from birth in subjection to the Crown, and indelibility
was an essential, vital and necessary characteristic.

  The Royal Commission to inquire into the Laws of Naturalization and
Allegiance was created May 21, 1868; and, in their report, the Commissioners,
among other things, say:  "The allegiance of a natural-born British subject is
regarded by the Common Law as indelible.  We are of opinion that this doctrine
of the Common Law is neither reasonable nor convenient.  It is at variance
with those principles on which the rights and duties of a subject should be
deemed to rest; it conflicts with that freedom of action which is now
recognized as most conducive to the general good as well as to individual
happiness and prosperity; and it is especially inconsistent with the practice
of a State which allows to its subjects absolute freedom of emigration."

  However, the Commission by a majority declined to recommend the abandonment
of the rule altogether though "clearly of opinion that it ought not to be, as
it now is, absolute and unbending;" but recommended certain modifications
which were carried out in subsequent legislation.

  But from the Declaration of Independence to this day, the united States have
rejected the doctrine of indissoluble allegiance and maintained the general
right of expatriation, to be exercised in subordination to the public
interests and subject to regulation.

  As early as the act of January 29, 1795, c. 20, 1 Stat. 414, applicants for
naturalization were required to take not simply an oath to support the
Constitution of the United States, but of absolute renunciation and abjuration
of all allegiance and fidelity to every foreign prince or State, and
particularly to the prince or State of which they were before the citizens or
subjects.

  The statute 3 Jac. 1, c. 4, provided that promising obedience [712] to any
other prince, State or potentate subjected the person so doing to be adjudged
a traitor, and to suffer the penalty of high treason; and in respect of the
act of 1795 Lord Grenville wrote to our minister, Rufus King:  "No British
subject can, by such a form of renunciation as that which is prescribed in the
American law of naturalization, divest himself of his allegiance to his
sovereign.  Such a declaration of renunciation made by any of the King's
subjects would, instead of operating as a protection to them, be considered an
act highly criminal on their part."  2 Amer. St. Pap. 149.  And see Fitch v.
Weber, 6 Hare, 51.

  Nevertheless, Congress has persisted from 1795 in rejecting the English rule
and in requiring the alien, who would become a citizen of the United States,
in taking on himself the ties binding him to our Government, to affirmatively
sever the ties that bound him to any other.

  The subject was examined at length in 1856, in an opinion given the
Secretary of State by Attorney General Cushing, 8 Opins. Attys. Gen. 139,
where the views of the writers on international law and those expressed in
cases in the Federal and state courts are largely set forth, and the Attorney
General says:  "The doctrine of absolute and perpetual allegiance, the root of
the denial of any right of emigration, is inadmissible in the United States.
It was a matter involved in, and settled for us by the Revolution, which
founded the American Union.

  "Moreover, the right of expatriation, under fixed circumstances of time and
of manner, being expressly asserted in the legislatures of several of the
States, and confirmed by decisions of their courts, must be considered as thus
made a part of the fundamental law of the United States."

  Expatriation included not simply leaving of one's native country, but the
becoming naturalized in the country adopted as a future residence.  The
emigration which the United States encouraged was that of those who could
become incorporate with its people; make its flag their own; and aid in the
accomplishment of a common destiny; and it was obstruction to such emigration
that made one of the charges against the Crown in the Declaration.

  [713] Ainslie v. Martin, 9 Mass. 454, 460, (1813); Murray v. McCarty, 2
Munf.  393, (1811); Alseberry v. Hawkins, 9 Dana, 177, (1839) are among the
cases cited.  In Ainslie v.  Martin, the indelibility of allegiance according
to the common law rule was maintained; while in Murray v.  McCarty and
Alseberry v.  Hawkins, the right of expatriation was recognized as a practical
and fundamental doctrine of America.  There was no uniform rule so far as the
States were severally concerned, and none such assumed in respect of the
United States.

  In 1859, Attorney General Black thus advised the President (9 Op. 356):
"The natural right of every free person, who owes no debts and is not guilty
of any crime, to leave the country of his birth in good faith and for an
honest purpose, the privilege of throwing off his natural allegiance and
substituting another allegiance in its place--the general right, in one word,
of expatriation, is incontestable.  I know that the common law of England
denies it; that the judicial decisions of that country are opposed to it; and
that some of our own courts, misled by British authority, have expressed,
though not very decisively, the same opinion.  But all this is very far from
settling the question.  The municipal code of England is not one of the
sources from which we derive our knowledge of international law.  We take it
from natural reason and justice, from writers of known wisdom, and from the
practice of civilized nations.  All these are opposed to the doctrine of
perpetual allegiance."

  In the opinion of the Attorney General, the United States, in recognizing
the right of expatriation, declined, from the beginning, to accept the view
that rested the obligation of the citizen on feudal principles, and proceeded
on the law of nations, which was in direct conflict therewith.

  And the correctness of this conclusion was specifically affirmed not many
years after, when the right as the natural and inherent right of all people
and fundamental in this country, was declared by Congress in the act of July
27, 1868, 15 Stat. 223, c. 249, carried forward into sections 1999 and 2000 of
the Revised Statutes, in 1874.

  [714] It is beyond dispute that the most vital constituent of the English
common law rule has always been rejected in respect of citizenship of the
United States.