court that Wong Kim Ark, having been born in this country, was a citizen thereof, although his parents, at the time of his birth, were, and still are, subjects of the Emperor of China. While the decision is based upon the interpretation of the citizenship clause of the Fourteenth Amendment, it virtually recognizes the existence of the common-law doctrine in this country. In other words, the learned judge adheres to the doctrine that mere birth in the United States confers the privilege of citizenship. Although the ruling involved the political status of Chinese persons born in this country, still it is not confined, in its legal effect, to Chinese alone, but necessarily applies to all persons born here of foreign parents. What imparts more than ordinary interest to the question is the fact that the doctrine enunciated is directly opposed to that of the international law, and to an expression of opinion, by the Supreme Court, in favor of the international doctrine contained in the Slaughter-house cases.1

There are two existing doctrines of citizenship; the one known as the jus soli, otherwise denominated as the common-law doctrine; the other, as the jus sanguinis, or doctrine of the law of nations. The former has been the established law of England, whence its appellation of "common-law doctrine." By the common law, birth within the realm made one a subject, without reference to the political status or condition of the parents.2 By the doctrine of the law of nations the political status of the child does not depend upon the place of birth, but it follows the status of the father and when the child is illegitimate, of the mother.3 In the United States, the question must depend upon the interpretation to be given to the first clause of the Fourteenth Amendment to the Constiution, but the peculiar language of a phrase in that provision renders it a somewhat debatable point as to whether the provision was intended to be declaratory of the common law or of the international doctrine. The courts have had but few occasions to construe this provision. Such decisions

1 16 Wall. 36.

2 Calvin's Case, 7 Co. 1; 1 Bl. Com. 366; 2 Kent's Com. 9; Lynch v. Clarke, 1 Sandf. Ch. 583; U. S. v. Rhodes, 1 Abb. U. S. R. 28.

3 Bar's Int. Law, Sec. 31; Vattel, Secs. 212-215; Savigny on Int. Law, Sec. 351.

as there are, relate entirely to the status of Chinese and Indians born in this country. The rule laid down by the Supreme Court in Elk v. Wilkins,1 with respect to the political status of Indians is, however, not applicable to that of Chinese, or persons other than Chinese, born here of foreign parents. It is held 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." The decisions, which have passed upon the political status of Chinese born here, were all rendered in the Ninth Circuit, and they hold that the Fourteenth Amendment was intended to be declaratory of the common-law rule, and that birth in this country is sufficient to confer the right of citizenship. On the other hand, the Supreme Court, in the Slaughter-house cases, used language which indicates that it then considered the provision as declaratory of the doctrine of the law of nations. Their expression of opinion. is as follows: "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.” 2

Independently of these decisions, the commonly accepted notion in this country, both prior and subsequent to the adoption of the Fourteenth Amendment, and that very generally entertained by the profession, has been that birth within the United States, although of alien parents, was sufficient, of itself, to confer the right of citizenship, without any other requisite, such for instance, as the naturalization proceedings which take place with reference to aliens. That this has been the generally

1 112 U. S. 102.

2 16 Wall. 36, 71, 73.

3 Lynch v. Clarke, supra; Look Tin Sing, 10 Sawy. 353.

recognized opinion is evidenced by the scarcity of decisions on the question. It is significant that since the adoption of the Fourteenth Amendment, the question has arisen simply with reference to Chinese and Indians. The Supreme Court, singular to say, has never directly passed on the political status of children born in this country of foreign parents. The question was not directly involved in the Slaughter-house cases, and what the court there stated is, therefore, dictum, and was so treated by Judge Morrow in the Wong Kim Ark case. In Minor v. Happersett,1 it declined to pass upon the question, as not necessary to its decision of that case. As a matter of fact, there was no definition in the constitution, or in any of the Acts of Congress, as to what constituted citizenship, until the enactment of the Civil Rights Bill in 1866, and the adoption of the Fourteenth Amendment in 1868. The act of 1802 simply applied to the children of United States citizens born abroad. So generally accepted and acted upon has been the impression that birth in this country ipso facto confers citizenship, that there are, to-day, thousands of persons born in the United States of foreign parents, who consider themselves, and are recognized, legally, as citizens. Among these are very many voters, whose right to vote, because born here of foreign parents, has never been seriously questioned. As was said in Lynch v. Clarke," "It is enough that he was born here, whatever the status of his parents." These persons, if the international doctrine is, at this late day, held to be the law of this country, would be, to all intents and purposes, "denationalized and remanded to a state of alienage." Important, however, as a final settlement of this question may be deemed to persons other than Chinese, it is of increased importance to the latter. For, if the Fourteenth Amendment be declaratory of the international rule, the only recourse to becoming a citizen so far as children born here of foreign parents are concerned, would be by means of naturalization. But, with respect to Chinese, this could never be done,- that is, under the laws as they now stand, it being provided by the Act of May 6th, 1882, that:

Hereafter no State court or court of the United States shall admit Chinese to citizenship." 1

In view, therefore, of the gravity of the question, it may not be amiss to advert briefly to the laws of this country on the subject of citizenship, and, in a very general way, to the leading features of the two doctrines.

Judge Morrow, in the Wong Kim Ark case, did not give the matter any very extended independent consideration, as he deemed himself bound by the authority, in his circuit, of In re Look Tin Sing, a decision rendered by Mr. Justice Field in 1884, where the question was ably and elaborately discussed. The Look Tin Sing case2 also involved the political status of a Chinaman born in this country whose parents were subjects of the Emperor of China. Mr. Justice Field held that he was a citizen of this country within the meaning of the Fourteenth Amendment. The Circuit Court of Appeals for the Ninth Circuit, in a similar case, also reached the same conclusion, without, however, entering into a discussion of the question.3

4

Prior to the Fourteenth Amendment, but two or three decisions involving the question of what constituted citizenship of the United States can be found. The first, and indeed the leading, case, in favor of the common-law rule in this country, is that of Lynch v. Clark, decided in 1844, by Vice-Chancellor Sandford, in the Court of Chancery of the State of New York. There the question arose in relation to the descent of certain real estate. Julia Lynch was born in this country in 1819, while her parents, who were British subjects, were in New York on a temporary sojourn. Shortly afterwards she was taken by her parents to England and resided there. The question arose as to whether or not she was a citizen of this country. It was held, in a very elaborate opinion, that she was; that the commonlaw doctrine was, so to speak, the common law of the United States, and, therefore, that mere birth in this country was sufficient to confer the privilege of citizenship. The

1 22 Stat. L., 58.

210 Sawy. 353.

3 See Gee Fook Sing v. U. S., 7 U. S. App. 27; 49 Fed. R. 146. See

also In re Chin King et al., 13 Sawy. 333, per Judge Deady; In re Yung Sing Hee, 36 Fed. R. 437.

4 Supra.

expression "common law of the United States," is certainly open to criticism, in view of the fact that the Supreme Court has repeatedly declared that there is no common law, as such, of the United States. Had the learned Chancellor said that it was the common law of the several States, the idea would have been more accurately expressed. But this inaccuracy of the expression, in legal nómenclature, may be treated as immaterial. The question also arose in another case; this time in the Federal courts, in United States v. Rhodes,1 where it was held by Mr. Justice Swayne, then sitting as Circuit Judge, that the common-law doctrine existed in this country. The decision was rendered in 1866, shortly after the enactment of the "Civil Rights Bill" which, as stated, contained a definition of citizenship. This decision, among other things, declared that act constitutional in all its provisions. But, whatever may have been the trend of judicial declarations prior to the Fourteenth Amendment, the question which now confronts the courts is not, primarily, what constitutes citizenship under the common law, or by the law of nations, but it is confined to the meaning of the words employed in the Fourteenth Amendment. If this distinction be clearly kept in mind, much of the confusion, that now seems to attend a consideration of the question, will be removed.

The only provisions in the constitution and laws of this country, at the present time, relating to citizenship, are as follows:

(1) The first clause, technically known as the "citizenship clause," of the Fourteenth Amendment to the constitution, which 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 States wherein they reside." The amendment was first proposed to the several States in 1866 but was not finally adopted and promulgated as the law of the land until 1868.

(2) The definition in the Civil Rights Bill, enacted in 1866 and reproduced as section 1992 in the Revised Statutes, is almost

11 Abb. U. S. Rep. 38.