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persons only, to defeat the main purpose of the constitutional amendment. The fact, therefore, that acts of Congress or treaties have 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." "

The acceptance of the foregoing doctrine, it was held, does not prevent the United States from providing that children born abroad of American citizens shall be considered citizens of the United States.27

27 Chief Justice Fuller rendered in the Wong Kim Ark case a dissenting opinion concurred in by Justice Harlan. These justices took the position that nationality was essentially a political idea and as such the constitutional provisions regarding it were to be interpreted in the light of international rather than English municipal provisions. "Obviously," they said, "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 distinguished 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."

This affirmative acceptance of the English common law upon this subject, these justices are unable to find. Upon the contrary, they find in the executive practice and various legislative acts of the United States Government rejection of important parts of the English doctrine of citizenship. Thus, for example, since the Declaration of Independence, this country has consistently rejected what, until 1870, was the doctrine of inalienable allegiance; that is, the doctrine denying the general right of expatriation. Furthermore, it is asserted in this dissenting opinion, that the act of Congress providing that children born abroad of American parents are American citizens, is an evidence that the common-law doctrine of jus soli, as distinguished from the civil rule of jus sanguinis, was not accepted as the general principle governing natural citizenship. After a review of the treaties of the United States, with China and various acts of Congress and decisions of the courts with reference thereto, Chief Justice Fuller concludes: "Did the Fourteenth Amendment impose the original English common-law rule on this country? Did the Amendment operate to abridge the treaty-making power, or the power to establish an uniform rule of naturalization? I insist that it cannot be maintained that this government is unable through the action of the President, concurred in by the Senate, to make a treaty with a foreign government providing that the

subjects of that government, although allowed to enter the United States, shall not be made citizens thereof, and that their children shall not become such citizens by reason of being born therein. A treaty couched in those precise terms would not be incompatible with the Fourteenth Amendment, unless it be held that that Amendment has abridged the treaty-making power. Nor would a naturalization law excepting persons of a certain race and their children be invalid, unless the Amendment has abridged the power of naturalization. This cannot apply to our colored fellow citizens, who never were aliens —were never beyond the jurisdiction of the United States. Born in the United States, and subject to the jurisdiction thereof,' and 'naturalized in the United States, and subject to the jurisdiction thereof,' mean born or naturalized under such circumstances as to be completely subject to that jurisdiction, that is, as completely as citizens of the United States, who are of course not subject to any foreign power, and can of right claim the exercise of the power of the United States on their behalf wherever they may be. When, then, children are born in the United States to the subjects of a foreign power, with which it is agreed by treaty that they shall not be naturalized thereby, and as to whom our own law forbids them to be naturalized such children are not born so subject to the jurisdiction as to become citizens, and entitled on that ground to the interposition of our government, if they happen to be found in the country of their parents' origin and allegiance, or any other. I think that it follows that the children of Chinese born in this country do not, ipso facto, become citizens of the United States unless the Fourteenth Amendment overrides both treaty and statute. Does it bear that construction; or, rather, is it not the proper construction that all persons born in the United States of parents permanently residing here and susceptible of becoming citizens, and not prevented therefrom by treaty or statute, are citizens, and not otherwise? But the Chinese under their form of government, the treaties and statutes, cannot become citizens nor acquire a permanent home here, no matter what the length of their stay may be. Wharton, Confl. Laws, § 12. . . . It is not to be admitted that the children of persons so situated become citizens by the accident of birth. On the contrary, I am of opinion that the President and the Senate by treaty, and the Congress by naturalization, have the power, notwithstanding the Fourteenth Amendment, to prescribe that all persons of a particular race, or their children, cannot become citizens, and that it results that the consent to allow such persons to come into and reside within our geographical limits does not carry with it the imposition of citizenship by birth on children born in the United States of parents permanently located therein, and who might themselves become citizens; nor, on the other hand, does it arbitrarily make citizens of children born in the United States of parents who, according to the will of their native government and of this government, are and must remain aliens."

CHAPTER XVIII,

NATURALIZATION.

§ 133. Naturalization by Statute.

Each country determines, by its own municipal law, the persons to be admitted to its citizenship.

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Since the adoption of the Constitution it has been recognized that citizenship of the United States may be obtained in two ways - by birth within the country, and by naturalization. As has been already learned, up to the time of the Dred Scott decision there was doubt whether birth within the United States or naturalization by the General Government was sufficient to endow one with either federal or state citizenship. By that decision this doubt was resolved in the negative, it being held that no one by mere birth became a citizen of the United States, and that one. could become a federal citizen only by becoming first a citizen of a State, though it was also held, it will be remembered, that a State could not, by making an African negro one of its own citizens, thereby endow him with the general constitutional privileges of federal citizenship. By the Fourteenth Amendment, however, it was declared that national citizenship is no longer dependent upon state citizenship, and that mere birth within the United States, even though of alien parents, or naturalization by federal law, is sufficient to create national citizenship; and that residence in a State is sufficient to render such a one a citizen of that State.

We thus see that the power given to Congress by Article I, Section VIII, Clause 4, of the Constitution " to establish an uniform rule of naturalization" is not to be construed, as was once alleged, as simply a power to remove the disabilities of foreign birth, leaving it to the States to determine whether or not, when such disabilities are removed, the individual shall become a citizen of the State where he resides, and thereby a citizen of the United States in the full constitutional sense of the term; but that it is a full complete power on the part of Congress to provide for the creation

of federal citizens by the naturalization of persons of foreign birth. With the exception of a few early cases1 there has never been any question but that the power of naturalization, whatever its scope, is vested exclusively in Congress. The cases holding this from the time of Chirac v. Chirac2 to United States v. Wong Kim Ark3 are too numerous to cite.*

It lies within the legislative discretion of Congress to determine the mode of naturalization, the conditions upon which it will be granted, and the persons and classes of persons to whom the right will be extended; but, as was said in the Wong Kim Ark case, not to limit the civil and political rights of naturalized citizens beyond the limits provided for in the Constitution.

Except as limited by the Constitution it is within the power of Congress to determine the civil and political rights which naturalized citizens shall enjoy, and to make these rights less than those possessed by native-born subjects. The due process of law clause of the Fifth Amendment, however, would prevent any very great discrimination as to civil rights, and this limitation is reinforced by the obligations of international comity. The Constitution itself provides that only a native-born citizen shall be eligible to the Presidency, or to the Vice-Presidency."

In the United States the granting of naturalization is held to be a judicial act.

1 See especially Collet v. Collet, 2 Dall. 294; 1 L. ed. 387.

22 Wh. 259; 4 L. ed. 234.

3169 U. S. 649; 18 Sup. Ct. Rep. 456; 42 L. ed. 890.

4 For an excellent statement of the exclusiveness of the federal power, see Taney's opinion in Scott v. Sandford. 19 How. 393; 15 L. ed. 691.

5 Art. II, Sec. 1, Cl. 5.

6 Twelfth Amendment.

7 Spratt v. Spratt, 4 Pet. 393; 7 L. ed. 897. Until 1870 naturalization in England was by special act of Parliament. Naturalization papers are now granted by the Home Secretary. India and many of the other British colonies have laws of their own fixing the terms on which they will grant their own special citizenship to aliens -a citizenship which, of course, does not carry with it a general English citizenship. This practice is anomalous in that it makes the one so naturalized swear fealty to the English King and repudiate all foreign allegiance, and yet does not make him an English citizen except for the particular colony. Thus the British Naturalization Act of 1870 (Section 16) provides: "All laws, statutes, and ordinances which may be

Congress by statute determines the courts which shall exercise the right to naturalize, and to such courts the function is exclusively confined. Congress may authorize, and for many years, has authorized, state courts to entertain naturalization proceedings, but there is, of course, no power on the part of the Federal Government to compel the exercise by such state courts of the power so granted.8

duly made by the legislature of any British possession for imparting to any person the privileges, or any of the privileges of naturalization, to be enjoyed by such person within the limits of such possession, shall, within such limits, have the authority of law." In an interesting note in the Juridical Review (XIV, 299) entitled "Naturalization in the Colonies," the question is raised as to the status in foreign countries of a person who has been granted all the rights of British citizenship within a particular colony, and has sworn fealty to the British King and has fores worn all other allegiance:- whether, for example, such a one while in France plotting against the English King would be guilty of treason, or what degree of British protection such a naturalized colonial would be entitled to in other than British territory. The author inclines to the belief that such a one would not, in the case supposed, be guilty of treason, also that a naturalized cclonial would not be entitled to British protection while abroad.

In the report of the Inter-Departmental Committee on the Naturalization Law, presented to the Houses of Parliament July 24, 1901, it was recommended that "provision should be made by legislation enabling a Secretary of State, or the Governor of a British possession, to confer the status of a British subject upon persons who fulfil the requisite conditions in any part of the British Dominions, and that the status so conferred should be recognized by British law everywhere within and without His Majesty's dominions. This provision should be without prejudice to the power of the legislature of any British possession to provide for the conferring upon any persons under such conditions as it might see fit, the whole or any of the rights of British subjects within its own territory."

8 The question as to the power of the federal courts to set aside, upon the ground of fraud, a decree of naturalization granted by a state court, or to annul it by an injunction prohibiting giving effect to it, seems in doubt, as appears from some decisions rendered prior to the Act of 1906 below quoted: United States v. Norsch, 42 Fed. Rep. 417; United States v. Gleason, 78 Fed. Rep. 396. Cf. article by Judge Henry Stockbridge, "the Law of Naturalization," in the Green Bag, XVII, 644. The Act of June 29, 1906, Section 15, provides that "it shall be the duty of the United States district attorneys for the respective districts, upon affidavit showing good cause therefor, to institute proceedings in any court having jurisdiction to naturalize aliens in the judicial district in which the naturalized citizen may reside at the time of bringing the suit, for the purpose of setting aside and cancel

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