Whether it was also the rule at common law that the children of British
subjects born abroad were themselves British subjects--nationality being
attributed to parentage instead of locality--has been variously determined.
If this were so, of course the statutes of Edw. III was declaratory, as was
the subsequent legislation. but if not, then such children were aliens, and
the statute of 7 Anne and subsequent statutes must be regarded as in some sort
acts of naturalization.  On the other hand, it seems to me that the rule
partus sequitur patrem has always applied to children of our citizens born
abroad and that the acts of Congress on this subject are clearly declaratory,
passed out of abundant caution to obviate misunderstandings which might arise
from the prevalence of the contrary rule elsewhere.

  Section 1993 of the Revised Statutes provides that children so born "are
declared to be citizens of the United States; but the rights of citizenship
shall not descend to children whose fathers never resided in the United
States."  Thus a limitation is prescribed on the passage of citizenship by
descent beyond the second generation if then surrendered by permanent
nonresidence, and this limitation was contained in all the acts from 1790
down.  Section 2172 provides that such children shall "be considered as
citizens thereof."

  The language of the statute of 7 Anne, c. 5, is quite different in providing
that, "the children of all natural-born subjects born out of the legiance of
Her Majesty, her heirs and successors, shall be deemed, adjudged and taken to
be natural-born subjects of this kingdom, to all intents, constructions and
purposes whatsoever."

  In my judgment, the children of our citizens born abroad were always
natural-born citizens from the standpoint of this Government.  If not, and if
the correct view is that they were aliens but collectively naturalized under
the acts of Congress which recognized them as natural-born, then those
[715] unless they have become such by individual compliance with the general
laws for the naturalization of aliens, because they are not naturalized "in
the United States."

  By the fifth clause of the first section of article two of the Constitution
it is provided that:  "No person except a natural-born citizen, or a citizen
of the United States, at the time of the adoption of the Constitution, shall
be eligible to the office of President; neither shall any person be eligible
to that office who shall not have attained to the age of thirty-five years,
and been fourteen years a resident within the United States."

  In the convention it was, says Mr. Bancroft, "objected that no number of
years could properly prepare a foreigner for that place; but as men of other
lands had spilled their blood in the cause of the united States, and had
assisted at every stage of the formation of their institutions, on the seventh
of September, it was unanimously settled that foreign-born residents of
fourteen years who should be citizens of at the time of the formation of the
Constitution are eligible to the office of President." 2 Bancroft Hist.  U.S.
Const.  193.

  Considering the circumstances surrounding the framing of the Constitution, I
submit that it is unreasonable to conclude that "natural-born citizen" applied
to everybody born within the geographical tract known as the United States,
irrespective of circumstances; and that the children of foreigners, happening
to be born to them while passing through the country, whether of royal
parentage or not, or whether of Mongolian, Malay or other race, were eligible
to the Presidency, while children of our citizens, born abroad, were not.

  By the second clause of the second section of article one it is provided
that:  "No person shall be a representative who shall not have attained to the
age of twenty-five years, and been seven years a citizen of the United States,
and who shall not, when elected, be an inhabitant of that State of which he
shall be chosen;" and by the third clause of section three, that:  "No person
shall be a senator who shall not have attained the age of thirty years, and
been nine years a citizen of the United States ************************

  [716]  At that time the theory largely obtained, as stated by Mr. Justice
Story, in his Commentaries on the Constitution, "that every citizen of a State
is ipso facto a citizen of the United States."  Section 1693.

  Mr. Justice Curtis, in Dred Scott v. Sandford, 19 How. 396, 576, expressed
the opinion that under the Constitution of the United States "every free
person born on the soil of a State, who is a citizen of that State by force of
its Constitution or laws, is also a citizen of the United States."  And he
said:  "Among the powers unquestionably possessed by the several States was
that of determining what persons should and what persons should not be
citizens.  It was practicable to confer on the Government of the Union this
entire power.  It embraced what may, well enough for the purpose now in view,
be divided into three parts.  First:  The power to remove the disabilities of
alienage, either by special acts in reference to each individual case, or by
establishing a rule of naturalization to be administered and applied by the
courts.  Second:  Determining what persons should enjoy the privileges of
citizenship, in respect to the internal affairs of the several States.  Third:
What native-born persons should be citizens of the United States.

  "The first-named power, that of establishing a uniform rule of
naturalization, was granted; and here the grant, according to its terms,
stopped.  Construing a Constitution containing only limited and defined powers
of government, the argument derived from this definite and restricted power to
establish a rule of naturalization must be admitted to be exceedingly strong.
I do not say it is necessarily decisive.  It might be controlled b other parts
of the Constitution containing only limited and defined powers of government,
the argument derived from this definite and restricted power to establish a
rule of naturalization must be admitted to be exceedingly strong.  I do not
say it is necessarily decisive.  It might be controlled by other parts of the
Constitution.  But when this particular subject of citizenship was under
consideration, and, in the clause specially intended to define the extent of
power concerning it, we find a particular part of this entire power separated
from the residue, and conferred on the General Government, there arises a
strong presumption that this is all which is granted, and that the residue is
left to the States and to the people.  And this presumption is, in my opinion,
converted into a certainty, by an examination of all such other clauses of the
Constitution as touch this subject."

  [717] But in that case Mr. Chief Justice Taney said:  "The words `people of
the United States' and `citizens' are synonymous terms, and mean the same
thing.  They both describe the political body who, according to our republican
institutions, form the sovereignty, and who hold the power and conduct the
government through their representatives.  They are what we familiarly call
the `sovereign people' and every citizen is one of this people and a
constituent member of this sovereignty.  . . . In discussing this question, we
must not confound the rights of citizenship which a State may confer within
its own limits, and rights of citizenship as a member of the Union.  It does
not by any means follow, because he has all the rights and privileges of a
citizen of a State, that he must be a citizen of the United States.  he may
have all of the rights of citizenship which a State may confer within its own
limits, and the rights of citizenship as a member of the Union.  It does not
by any means follow, because he has all the rights and privileges of a citizen
of a State, that he must be a citizen of the United States.  He may have all
the rights and privileges of a citizen of a State, and yet not be entitled to
the rights and privileges of a citizen in any other State.  For, previous to
the adoption of the Constitution of the United States, every State had the
undoubted right to confer on whomsoever it pleased the character of citizen
and to endow him with all its rights.  But this character of course was
confined to the boundaries of the State, and gave him no rights or privileges
in other States beyond those secured to him by the laws of nations and the
comity of States.  Nor have the several States surrendered the power of
conferring these rights and privileges by adopting the Constitution of the
United States.  Each State may still confer them upon an alien, or any one it
thinks proper, or upon any class or description of persons; yet he would not
be a citizen in the sense in which that word is used in the Constitution of
the United States, nor entitled to sue as such in one of its courts, nor to
the privileges and immunities of a citizen in other States.  The rights which
he would acquire would be restricted to the State which gave them.  The
Constitution has conferred on Congress the right to establish an uniform rule
of naturalization, and this right is evidently exclusive, and has always been
held by this court to be so.  Consequently, no State, since the adoption of
the Constitution, can by naturalizing an alien invest him with the rights and
privileges secured to a citizen of a State under the Federal [718] Government,
although, so far as the State alone was concerned, he would undoubtedly be
entitled to the rights of a citizen, and clothed with all the rights and
immunities which the Constitution and laws of the State attached to that
character."

  Plainly the distinction between citizenship of the United States and
citizenship of a State thus pointed out, involved then, as now, the complete
rights of the citizen internationally as contradistinguished from those of
persons not citizens of the United States.

  The English common law rule recognized no exception in the instance of birth
during the mere temporary or accidental sojourn of the parents.  As allegiance
sprang from the place of birth regardless of parentage and supervened at the
moment of birth, the inquiry whether the parents were permanently or only
temporarily within the realm was wholly immaterial.  And it is settled in
England that the question of domicil is entirely distinct form that of
allegiance.  The one relates to the civil, and the other to the political
status.  Udny v. Udny, L. R. 1 H. L. Sc. 441, 457.

  But a different view as to the effect of permanent abode on nationality has
been expressed in this country.

  In his work on Conflict of Laws, Section 48, Mr. Justice Story, treating the
subject as one of public law, said:  "Persons who are born in a country are
generally deemed to be citizens of that country.  A reasonable qualification
of the rule would seem to be that it should not apply to the children of
parents who were in itinere in the country, or who were abiding there for
temporary purposes, as for health or curiosity, or occasional business.  It
would be difficult, however, to assert that in the present state of public law
such a qualification is universally established."

  Undoubtedly all persons born in a country are presumptively citizens
thereof, but the presumption is not irrebutable.

  In his Lectures on Constitutional Law, p. 279, Mr. Justice Miller remarked:
"If a stranger or traveller passing through, or temporarily residing in this
country, who has not himself been naturalized, and who claims to owe no
allegiance to our Government, has a child born here which goes out of the
country [719] with its father, such child is not a citizen of the United
States, because it was not subject to its jurisdiction."

  And to the same effect are the rulings of Mr. Secretary Frelinghuysen in the
matter of Hausding, and Mr. Secretary Bayard in the matter of Greisser.

  Hausding was born in the United States, went to Europe, and, desiring to
return, applied to the minister of the United States for a passport, which was
refused on the ground that the applicant was born of Saxon subjects
temporarily in the United States.  Mr. Secretary Frelinghuysen wrote to Mr.
Kasson, our minister:  "You ask `Can one born a foreign subject, but within
the United States, make the option after his majority, and while still living
abroad, to adopt the citizenship of his birthplace?  It seems not, and that he
must change his allegiance by emigration and legal process of naturalization.'
Sections 1992 and 1993 of the Revised Statutes clearly show the extent of
existing legislation; that the fact of birth, under circumstances implying
alien subjection, establishes of itself no right of citizenship; and that the
citizenship of a person so born is to be acquired in some legitimate manner
through the operation of statute.  No statute contemplates the acquisition of
the declared character of an American citizen by a person not at the time
within the jurisdiction of the tribunal of record which confers that
character."

  Greisser was born in the State of Ohio in 1867, his father being a German
subject and domiciled in Germany, to which country the child returned.  After
quoting the act of 1866 and the Fourteenth Amendment, Mr. Secretary Bayard
said:  "Richard Greisser was no doubt born in the United States, but he was on
his birth `subject to a foreign power' and `not subject to the jurisdiction of
the United States.'  he was not, therefore, under the statute and the
Constitution a citizen of the United States by birth; and it is not pretended
that he has any other title to citizenship."  2 Whart. Int. Dig. 399.

  The Civil Rights Act became a law April 9, 1866 (14 Stat. 27, c. 31), and
provided:  "That all persons born in the United States and not subject to any
foreign power, excluding Indians [720] not taxed, are hereby declared to be
citizens of the United States."  And this was reenacted June 22, 1874, in the
Revised Statutes, section 1992.

  The words "not subject to any foreign power" do not in themselves refer to
mere territorial jurisdiction, for the persons referred to are persons born in
the United States.  All such persons are undoubtedly subject to the
territorial jurisdiction of the united States, and yet the act concedes that
nevertheless they may be subject to the political jurisdiction of a foreign
government.  In other words, by the terms of the act all persons born in the
United States, and now owing allegiance to any foreign power, are citizens.

  The allegiance of children so born is not the local allegiance arising from
their parents merely being domiciled in the country, and it is single and not
double allegiance.  Indeed double allegiance in the sense of double
nationality has no place in our law, and the existence of a man without a
country is not recognized.

  But it is argued that the words "and not subject to any foreign power"
should be construed as excepting from the operation of the statute only the
children of public ministers and of aliens born during hostile occupation.

  Was there any necessity of excepting them?  And if there were others
described by the words, why should the language be construed to exclude them?

  Whether the immunity of foreign ministers from local allegiance rests on the
fiction of extra-territoriality or on the waiver of territorial jurisdiction
by receiving them as representatives of other sovereignties, the result is the
same.

  They do not owe allegiance otherwise than to their own governments, and
their children cannot be regarded as born within any other.

  And this is true as to the children of aliens within territory in hostile
occupation, who necessarily are not under the protection of, nor bound to
render obedience to, the sovereign whose domains are invaded; but it is not
pretended that the children of citizens of a government so situated would not
become its citizens at their birth, as the permanent allegiance [721] of their
parents would not be severed by the mere fact of the enemy's possession.

  If the act of 1866 had not contained the words, "and not subject to any
foreign power," the children neither of public ministers nor of aliens in
territory in hostile occupation would have been included within its terms on
any proper construction, for their birth would not have subjected them to ties
of allegiance, whether local and temporary, or general and permanent.

  There was no necessity as to them for the insertion of the words although
they were embraced by them.

  But there were others in respect of whom the exception was needed, namely,
the children of aliens, whose parents owed local and temporary allegiance
merely, remaining subject to a foreign power by virtue of the tie of permanent
allegiance, which they had not severed by formal abjuration or equivalent
conduct, and some of whom were not permitted to do so if they would.

  And it was to prevent the acquisition of citizenship by the children of such
aliens merely by birth within the geographical limits of the United States
that the words were inserted.

  Two months after the statute was enacted, on June 16, 1866, the Fourteenth
Amendment was proposed, and declared ratified July 28, 1868.  The first clause
of the first section reads:  "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."  The act was passed and the
amendment proposed by the same Congress, and it is not open to reasonable
doubt that the words "subject to the jurisdiction thereof" in the amendment
were used as synonymous with the words "and not subject to any foreign power"
of the act.

  The jurists and statesmen referred to in the majority opinion, notably
Senators Trumbull and Reverdy Johnson, concurred in that view, Senator
Trumbull saying:  "What do we mean by `subject to the jurisdiction of the
United States'?  Not owing allegiance to anybody else; that is what it means."
And Senator Johnson:  "Now, all that this amendment provides [722] is that all
persons born within the United States and not subject to some foreign
power--for that no doubt is the meaning of the committee who have brought the
matter before us--shall be considered as citizens of the United States."
Cong. Globe, 1st Sess. 39th Cong., 2893 et seq.

  This was distinctly so ruled in Elk v. Wilkins, 112 U.S. 94; and no reason
is perceived why the words were used if they apply only to that obedience
which all persons, not possessing immunity therefrom, must pay the laws of the
country in which they happen to be.

Dr. Wharton says that the words "subject to the jurisdiction" must be
construed in the sense which international law attributes to them, but that
the children of our citizens born abroad, and of foreigners born in the United
States have the right on arriving at full age to elect one allegiance and
repudiate the other.  Whart. Conflict of Laws, Sections 10, 11, 12.

  The Constitution and statutes do no contemplate double allegiance, and how
can such election be determined?  By section 1993 of the Revised Statutes, the
citizenship of the children of our citizens born abroad may be terminated in
that generation by their persistent abandonment of their country; while by
sections 2167 and 2168, special provision is made for the naturalization of
alien minor residents, on attaining majority, by dispensing with the previous
declaration of intention and allowing three years of minority on the give
years' residence required; and also for the naturalization of children of
aliens whose parents have died after making declaration of intention.  By
section 2172 children of naturalized citizens are to be considered citizens.

  While then the naturalization of the father carries with it that of his
minor children, and his declaration of intention relieves them from the
preliminary steps for naturalization, and minors are allowed to count part of
the residence of their minority on the whole term required and are relieved
from the declaration of intention, the statutes make no provision for formal
declaration of election by children born in this country of alien parents on
attaining majority.

  The point, however, before us, is whether permanent [723] allegiance is
imposed at birth without regard to circumstances--permanent until thrown off
and another allegiance acquired by formal acts--not local and determined by a
mere change of domicil.

  The Fourteenth Amendment came before the court in The Slaughterhouse Cases,
16 Wall. 36, 73, at December 534m, 1872 (the cases having been brought up by
writ of error in May, 1870, 10 Wall. 273), and it was held that the first
clause was intended to define citizenship of the United States and citizenship
of a State, which definitions recognized the distinction between the one and
the other; that the privileges and immunities of citizens of the States
embrace generally those fundamental civil rights for the security of which
organized society was instituted, and which remain, with certain exceptions
mentioned in the Federal Constitution, under the care of the state
governments; while the privileges and immunities of citizens of the United
States are those which arise out of the nature and essential character of the
national Government, the provisions of its Constitution, or its laws and
treaties made in pursuance thereof; and that it is the latter which are placed
under the protection of Congress by the second clause.

  And Mr. Justice Miller, delivering the opinion of the court, in analyzing
the first clause, observed that "the phrase `subject to the jurisdiction
thereof' was intended to exclude from its operation children of ministers,
consuls and citizens or subjects of foreign States, born within the United
States."

  That eminent judge did not have in mind the distinction between persons
charged with diplomatic functions and those who were not, but was well aware
that consuls are usually the citizens or subjects of the foreign states from
which they come, and that, indeed, the appointment of natives of the places
where the consular service is required, though permissible, has been
pronounced objectionable in principle.

  His view was that the children of "citizens or subjects of foreign States,"
owing permanent allegiance elsewhere and only local obedience here, are not
otherwise subject to the jurisdiction of the United States than are their
parents.

  [724] Mr. Justice Field dissented from the judgment of the court, and
subsequently in the case of Look Tin Sing, 10 Sawyer, 353, in the Circuit
Court for the District of California, held children born of Chinese parents in
the United States to be citizens, and the cases subsequently decided in the
Ninth Circuit followed that ruling.  Hence the conclusion in this case which
the able opinion of the District Judge shows might well have been otherwise.

  I do not insist that, although what was said was deemed essential to the
argument and a necessary part of it, the point was definitively disposed of in
the Slaughterhouse Cases, particularly as Chief Justice Waite in Minor v.
Happersett, 21 Wall. 162, 167, remarked that there were doubts, which for the
purposes of the case then in hand it was not necessary to solve.   But that
solution is furnished in Elk v. Wilkins, 112 U.S. 94, 101, where the subject
received great consideration and it was said:

  "By the Thirteenth Amendment of the Constitution slavery was prohibited.
The main object of the opening sentence of the Fourteenth Amendment was to
settle the question, upon which there had been a difference of opinion
throughout the country and in this court, as to the citizenship of free
negroes, Scott v. Sandford, 19 How. 393; and to put it beyond doubt that all
persons, white or black, and whether formerly slaves or not, born or
naturalized in the United States, and owing no allegiance to any alien power,
should be citizens of the United States, and of the State in which they
reside.  Slaughterhouse Cases, 16 Wall. 36, 73; Strauder v. West Virginia, 100
U.S. 303, 306.


  "This section contemplates two sources of citizenship, and two sources only:
birth and naturalization.  The persons declared to be citizens are `all
persons born or naturalized in the United States, and subject to the
jurisdiction thereof.'  The evident meaning of these last words is, 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.  And the words relate to the time of birth in the
one case, as they do [725] to the time of naturalization in the other.
Persons not thus subject to the jurisdiction of the United States at the time
of birth cannot become so afterwards, except by being naturalized, either
individually, as by proceedings under the naturalization acts, or
collectively, as by the force of a treaty by which foreign territory is
acquired."

  To be "completely subject" to the political jurisdiction of the United
States is to be in no respect or degree subject to the political jurisdiction
of any other government.

  Now I take it that the children of aliens, whose parents have not only
renounced their allegiance to their native country, but are forbidden by its
system of government, as well as by its positive laws, from doing so, and are
not permitted to acquire another citizenship by the laws of the country into
which they come, must necessarily remain themselves subject to the same
sovereignty s their parents, and cannot, in the nature of things, be, any more
than their parents, completely subject to the jurisdiction of such other
country.

  Generally speaking, I understand the subject of the Emperor of China--that
ancient Empire, with its history of thousands of years and its unbroken
continuity in belief, traditions and government, in spite of revolutions and
changes of dynasty--to be bound to him by every conception of duty and by
every principle of their religion, of which filial piety is the first and
greatest commandment; and formerly, perhaps still, their penal laws denounced
the severest penalties on those who renounced their country and allegiance,
and their abettors; and, in effect, held the relatives at home of Chinese in
foreign lands as hostages for their loyalty.*1*  And [726] whatever concession
may have been made by treaty in the direction of admitting the right of
expatriation in some sense, they seem in the United States to have remained
pilgrims and sojourners as all their fathers were.  149 U.S. 717.  At all
events, they have never been allowed by our laws to acquire our nationality,
and, except in sporadic instances, do not appear ever to have desired to do
so.

  The Fourteenth Amendment was not designed to accord citizenship to persons
so situated and to cut off the legislative power from dealing with the
subject.

  The right of a nation to expel or deport foreigners who have not been
naturalized or taken any steps toward becoming citizens of a country, is as
absolute and unqualified as the right to prohibit and prevent their entrance
into the country.  149 U.S. 707.

  But can the persons expelled be subjected to "cruel and unusual punishments"
in the process of expulsion, as would be the case if children born to them in
this country were separated from them on their departure, because citizens of
the United States?  Was it intended by this amendment to tear up parental
relations by the roots?

  The Fifteenth Amendment provides that "the right of citizens of the United
States to vote shall not be denied or abridged by the United States or by any
State on account of race, color or previous condition of servitude."  Was it
intended thereby that children of aliens should, by virtue of being born in
the [727] United States, be entitled on attaining majority to vote
irrespective of the treaties and laws of the United States in regard to such
aliens?

  In providing that persons born or naturalized in the United States, and
subject to the jurisdiction thereof, are citizens, the Fourteenth Amendment
undoubtedly had particular reference to securing citizenship to the members of
the colored race, whose servile status had been obliterated by the Thirteenth
Amendment, and who had been born in the United States, but were not and never
had been subject to any foreign power.  They were not aliens, (and even if
they could be so regarded, this operated as a collective naturalization,) and
their political status could not be affected by any change of the laws for the
naturalization of individuals.