 Section 10 of a collection of Supreme Court opinions by the United States Supreme Court. This is a LibriVox recording. All LibriVox recordings are in the public domain. For more information or to volunteer, please visit LibriVox.org. United States v. Ball 163 U.S. 662. Decided May 25, 1896. Please note this is a reading of the opinion of the court only. This reading does not include the syllabus or any concurring or dissenting opinions. For ease of listening, this reading omits legal citations found within the text of the court's opinion. United States v. Ball. Mr. Justice Gray delivered the opinion of the court. At October term 1889 of the Circuit Court of the United States for the Eastern District of Texas, the grand jury returned in indictment against Millard Fillmore Ball, John C. Ball and Robert E. Boutwell for the murder of William T. Box, alleging that the defendants, being white men and not Indians on June 26, 1899, in Pickens County in the Chickasaw Nation in the Indian Territory, did unlawfully and feloniously, and with their malice aforethought, or with the deadly weapon to which a gun held in their hands and loaded and charged with gunpowder and leaden balls, make an assault upon the body of William T. Box, and quote did shoot off and discharged the contents of said gun in and upon the body of said William T. Box. Afflicting thereon ten mortal wounds of which mortal wounds, the said William T. Box did languish and languishing did die. End of quote. Upon that indictment the three defendants were arraigned and pleaded not guilty, and were tried together upon the issues so joined. The trial began on Wednesday, October 30, 1889, and proceeded from day to day until Saturday, November 2, when the jury retired to consider of their verdict, and no verdict having been returned at the usual hour of adjournment, the court was kept open to receive the verdict. On Sunday, November 3, 1889, the jury returned a verdict as follows, quote, we the jury, upon the defendants J. C. Ball and R. E. Boutwell, guilty as charged in this indictment, and we find Mr. Fillmore Ball not guilty. End of quote. The court on the same day made the following order, quote, it is therefore considered by the court that the defendants J. C. Ball and R. E. Boutwell are guilty as charged in the indictment herein, and as found by the jury, and it is ordered that they be remanded to the custody of the Marshal, and be by him committed to the county jail of Lamar County to await the judgment and sentence of the court. It is further ordered that the defendant M. F. Ball be discharged and go hence without day. End of quote. Afterwards, at the same term, John C. Ball and R. E. Boutwell were a judged guilty in sentence to death and sued out a writ of error from this court, and in the assignment of errors filed by them in the circuit court, as appears by the record transmitted to this court in that case, specified among other things, quote, because no legal indictment was returned into court against respondents. End of quote. In that, the indictment on which they were tried, quote, nowhere alleges when and where said William T. Box died. End of quote. End quote. For the errors stated and apparent upon the record herein, respondents pray that the judgment be reversed and the cause remanded it for a new trial. End of quote. And the brief then filed in their behalf concluded by submitting that the judgment ought to be reversed and the indictment dismissed. Upon that writ of error, this court at October term, 1890, held that that indictment, although sufficiently charging an assault, yet by reason of failing to aver either the time or the place of the death of Box, was fatally defective and would not support a sentence for murder and therefore reversed the judgments against John C. Ball and Robert E. Boutwell and remanded it the case with directions to quash the indictment and to take such further proceedings in relation to them as to justice might appertain. At April term, 1891 of the circuit court, that indictment was dismissed and the grand jury returned against all three defendants a new indictment, being the one now before the court, like the former one, except that after charging the assault with malice a forethought loaded gun upon Box on June 26, 1889 in Pickens County in the Indian territory, it went on to charge that the three defendants quote, did then in their shoot-off and discharge the contents of said gun at, in and upon the body of said William T. Box, inflicting thereon a mortal wound of which mortal wound the said William T. Box, did languish in languishing did then in there instantly die, in did then and there die within a year and a day after the inflection of the said mortal wound as aforesaid, end of quote. To this indictment the defendant Millard F. Ball filed a plea of former jeopardy and former acquittal relying upon the trial, the verdict of acquittal and the order of the court for his discharge, upon the former indictment, a certified copy of the record of the proceedings upon which was annexed to and made part of his plea. The defendants John C. Ball and Boutwell filed a plea of former jeopardy by reason of their trial and conviction upon the former indictment and of the dismissal of that indictment. Both these pleas were overruled by the court and the three defendants and severally pleaded not guilty. At the trial it appeared that William T. Box was killed on June 26, 1889. The defendants offered in evidence the record of the proceedings upon the former indictment and it was omitted by all parties that the offense charged in the former indictment and that charged in the present indictment was one in the same transaction and defense to wit the killing of Box by three defendants that the defendants in the two indictments were the same persons and that no writ of error was ever sued out upon the judgment or ordered entered upon the former indictment as to Millard F. Ball. The circuit court, among other instructions, instructed the jury to find against both pleas of former jeopardy because this court had decided that the former indictment was insufficient as an indictment for murder. The jury returned a verdict of guilty of murder against all three defendants. Each of them was judged guilty accordingly and sentenced to death and thereupon they sued out this writ of error. The first matter to be considered is the effect of the acquittal of Millard F. Ball by the jury upon the trial of the former indictment. In England, an acquittal upon an indictment so defective that if it had been objected to at the trial or by motion in arrest of judgment or by writ of error it would not have supported any conviction or sentence has generally been considered as insufficient to support a plea of former acquittal. The foundation of that doctrine is Vaux's case, for Rep. 44 in which William Vaux, being duly indicted for the murder of Nicholas Ridley by persuading him to drink a poisoned potion, pleaded a former acquittal, the record of which set forth a similar indictment alleging that Ridley not knowing that the potion was poisoned but confiding in the persuasion of Vaux took and drank without saying, quote, took and drank said potion, end of quote, a plea of not guilty, a special verdict finding that Ridley was killed by taking the potion and that Vaux was not present when he took it. And a judgment rendered thereon that the poisoning of Ridley in persuading him to take the poison as found by the verdict was not murder in that the defendant go without date, iat sine die. Upon a hearing on the plea of Autré Foy acquit, the court of Queen's bench was of opinion that Vaux was a principal, although not present when Ridley took the poison, but that the indictment was insufficient for not expressly alleging that Ridley drank the poison, end of quote, because the indictment in this case was insufficient, and for this reason he was not legitimate moto acquiatates, end of quote, quote, nor was the life of the party and the judgment of the law ever in jeopardy, end of quote. Yet the decision in Vaux's case was treated both by Lord Koch and by Lord Hale as maintainable only upon the ground that the judgment upon the first indictment was, quote, iat sine die, which might be given as well for the insufficiency of the indictment, as for the defendants not being guilty of the offense, and Lord Hale was clearly of the opinion that a judgment, quote, iat sine die, could not go to the insufficiency of the indictment, but must go to the matter of the verdict, and would be a perpetual discharge. And Mr. Starkey has observed, quote, the doctrine expounded in this case does not appear to consist with the general principle on which the plea of autré fort acquit is said to depend, since an acquittal upon a special verdict would leave the defendant exposed to a second prosecution whenever a formal flaw could be detected in the first indictment at any subsequent period, end of quote. In the leading American case of people versus Barrett, one Johns 66, while a majority of the court consisting of Chief Justice Kent and Justices Thomas and Spencer followed the English authorities, Justices Livingston and Tompkins strongly dissented, and their reasons were fully stated by Mr. Justice Livingston, who after distinguishing cases in which upon the first trial there had been no general verdict of acquittal by the jury, but only a special verdict upon which the court had discharged the defendant, as well as cases in which the defendant himself had suggested the imperfection in the first indictment, and there upon obtained judgment in his favor, said, quote, these defendants have availed themselves of no such imperfection, if any there were, nor has any judgment to that effect been pronounced. This case, in short, presents the novel and unheard of spectacle of a public officer whose business it was to frame a correct bill, openly alleging his own inaccuracy or neglect, as a reason for a second trial, when it is not pretended that the merits were not fairly an issue on the first, that a party should be deprived of the benefit of an acquittal by a jury on a suggestion of this kind coming to from the officer who drew the indictment seems not to comport with that universal and humane principle of criminal law, quote, that no man shall be brought into danger more than once for the same offense, end, quote. It is very like permitting a party to take advantage of his own wrong, if this practice be tolerated when our trials of the accused end, if a conviction take place, whether an indictment be good or otherwise, it is ten to one that judgment passes, for if he read the bill, it is not probable he will have penetration enough to discern its defects. His counsel, if any be assigned to him, will be content with hearing the substance of the charge without looking farther, and the court will hardly, of its own accord, think at a duty to examine the indictment to detect errors in it. Many hundreds perhaps are now in the state prison on erroneous indictments, who, however, have been fairly tried on the merits. But reverse the case and suppose an acquittal to take place, the prosecutor, if he be dissatisfied and bent on conviction, has nothing to do but to tell the court that his own indictment was good for nothing, that it has no venue to be deficient in other particulars, and that therefore he has a right to a second chance of convicting the prisoner in Sohan Totias Quotius, end of quote. In Commonwealth versus Purchase, 2 p. 521. 526, Chief Justice Parker, speaking of the doctrine which allows a man to be tried again, after being acquitted on an indictment substantially bad, said that quote. Ingenuity has suggested that he never was in jeopardy, because it is to be presumed that the court will discover the defect in time to prevent judgment, end of quote. But that this quote is bottomed upon an assumed infallibility of the courts, which is not admitted in any other case, end of quote. In the revised statutes of Massachusetts of 1836, C-123, paragraphs 4 and 5, provisions were inserted, which as the commissioners who reported them said, were quote, intended to define and determine, as far as may be, the cases in which a former acquittal shall or shall not be a bar to a subsequent prosecution for the same offense, end of quote. And where as follows, quote, no person shall be held to answer on a second indictment for any offense of which he has been acquitted by the jury upon the facts and merits on a former trial, but such acquittal may be pleaded by him in bar of any subsequent prosecution for the same offense, notwithstanding any defect in the form or in the substance of the indictment on which he was acquitted. If any person who was indicted for an offense shall on his trial be acquitted upon the ground of a variance between the indictment and the proof, or upon any exception to the form or to the substance of the indictment, he may be arraigned again on a new indictment, he may be tried and convicted for the same offense, notwithstanding such former acquittal, end of quote. Similar statutes have been passed in other states. The American decisions in which the English doctrine has been followed have been based upon the English authorities with nothing added by way of reasoning. After the full consideration which the importance of the question demands, that doctrine appears to us to be unsatisfactory in the grounds on which it proceeds, as well as unjust in its operation upon those accused of crime, and the question being now for the first time presented to this court, we are unable to resist the conclusion that a general verdict of acquittal upon the issue of not guilty to an indictment undertaking to charge murder, and not objected to before the verdict as insufficient in that respect, is a bar to a second indictment for the same killing. The Constitution of the United States in the Fifth Amendment declares, quote, nor shall any person be subject to be twice put in jeopardy of life or limb, end of quote. The prohibition is not against being twice punished, but against being twice put in jeopardy, and the accused, whether convicted or acquitted, is equally put in jeopardy at the first trial. In acquittal before a court having no jurisdiction is of course like all the proceedings in the case absolutely void, and therefore no bar to subsequent indictment in trial in a court which has jurisdiction of the offense. But although the indictment was fatally defective, yet if the court had jurisdiction of the cause and of the party, its judgment is not void, but only voidable by writ of error, and until so avoided cannot be collateral impeached. If the judgment is upon a verdict of guilty and unreversed it stands and warrants the punishment of the defendant accordingly, and he could not be discharged by a writ of habeas corpus. If the judgment is upon an acquittal the defendant indeed will not seek to have it reversed, and the government cannot. But the fact that the judgment of a court having jurisdiction of the case is practically final, affords no reason for allowing its validity and conclusiveness to be impugned in another case. The former indictment set forth the charge of murder, although lacking the requisite fullness and precision. The verdict of the jury, upon a trial upon the issue of guilty or not guilty, acquitted Millard F. Ball of the whole charge of murder, as well as any less offense included therein. That he was there upon discharge by the circuit court by reason of his acquittal by the jury, and not by reason of any insufficiency in the indictment, is clearly shown by the fact that the court, by the same order which discharged him, committed the other defendants found guilty by the same verdict to custody to await sentence, and afterwards a judge them guilty and sentenced them to death upon that indictment. Millard F. Ball's acquittal by the verdict of the jury could not be deprived of its legitimate effect by the subsequent reversal by this court of the judgment against the other defendants upon the writ of error, sued out by them only. It is true that the verdict finding John C. Ball and Robert E. Boutwell guilty as charged in the indictment and finding Millard F. Ball not guilty was returned on Sunday, as well as that the order thereupon made by the court by which it was considered that the first two defendants were guilty as charged in the indictment and found by the jury and be remanded to custody to await the judgment and sentence of the court and that Millard F. Ball be discharged and go without day was made on the same day. That order indeed as already a judge by this court could not have effect as a judgment against the two defendants who had been convicted because no judgment can lawfully be entered on Sunday. But when a case is committed to the jury on Saturday, their verdict may be received in the jury discharged on Sunday. This has been generally put upon the ground that the reception of the verdict and discharge of the jury is but a ministerial act involving no judicial discretion or that it is an act of necessity and it certainly tends to promote the observance of the day more than would keeping the jury together until Monday. As to the defendant who had been acquitted by the verdict duly returned and received, the court could take no other action than to order his discharge. The verdict of acquittal was final and could not be reviewed on error or otherwise without putting him twice in jeopardy and thereby violating the Constitution. However it may be in England in this country a verdict of acquittal although not followed by any judgment is a far to a subsequent prosecution for the same offence. For these reasons the verdict of acquittal was conclusive in favor of Millard F. Ball and as to him the judgment must be reversed and judgment rendered for him upon his plea of former acquittal. It therefore becomes unnecessary to consider any of the other questions raised at the trial which affect Millard F. Ball only and we proceed to consider those effect in the other defendants John C. Ball and Robert E. Boutwell. Their plea of former conviction cannot be sustained because on a writ of error sued out by themselves the judgment and sentence against them were reversed and the indictment ordered to be dismissed. How far if they had taken no steps to set aside the proceedings in the former case the verdict and sentence therein could have been held to bar a new verdict against them need not be considered because it is quite clear that a defendant who procures a judgment against him upon an indictment to be set aside may be tried anew upon the same indictment or upon another indictment for the same offence of which he had been convicted. The court therefore rightly overruled their plea of former jeopardy and cannot prevent them by afterwards permitting them to put in evidence the former conviction and instructing the jury that the plea was bad. These two defendants moved that they be tried separately from Millard F. Ball because he had been previously acquitted because the government relied on his acts and declarations made after the killing and not in their presence or hearing and because he was a material but the question whether defendants jointly indicted should be tried together or separately was a question resting in the sound discretion of the court below. It does not appear that there was any abuse of the discretion in ordering the three defendants to be tried together or that the court did not duly limit the effect of any evidence introduced which was competent against one defendant and incompetent against the others on the contrary upon the offer by the United States of Evidence of declarations made by Millard F. Ball after the killing and not in the presence of the other defendants and upon an objection to his admissibility against them the court at once said in the presence of the jury that of course it would be only evidence against him if he said anything and the court was not afterwards requested to make any further ruling upon this point the exception of the restriction of the cross examination of cross and burning two material witnesses for the prosecution cannot be sustained the court permitted the defendant's counsel for the purpose of showing bias and prejudice on the part of these witnesses to ask them whether they had at their own expense employed another attorney to assist the district attorney in the prosecution of this case and they frankly answered that they had the fact having been thus proved and admitted the further question to one of them how much do you pay for him might properly be excluded by the presiding judge as immaterial the government introduced evidence tending to show that box was killed by low mold buckshot as he was going home through a cornfield late at night and that he had 12 wounds on his breast collarbone and hips that gun wadding was found close to the body that he was shot with a double barreled muzzle load and gun belonging to the defendant John C. Ball in which had been in the marshals exclusive control since the arrest of the defendants and that this gun scattered low mold buckshot badly the defendants introduced evidence that the gun did not scatter such shot and requested permission from the court to take the gun out and shoot it off in the presence of a deputy marshal in order to test how it threw such shot the court denied the request and the defendants accepted to the denial the granting or refusal of such a request first made in the midst of the trial was clearly within the discretion of the court the only grounds of the motion in arrest of judgment were that the indictment did not allege that box died of the wound charged had been inflicted upon his body by the defendants nor that he died at a place within the jurisdiction of the court but the indictment alleged that the defendants in pickens county in the indian territory on june 26 1889 by shooting with a loaded gun inflicted upon the body of box quote immortal wound of which mortal wound the said william teabox did languish and languishing did then and there instantly die and a quote it was thus distinctly unequivocally alleged the box died of the mortal wound alleged to have been inflicted by the defendants and that he died at the time and place at which the mortal wound was inflicted the court overruled a motion of the defendants for a new trial made upon the ground that the jury from the time they were impaneled until they returned their verdict were not in charge of a proper officer after the hearing of this motion it was admitted that the jury during all the trial were in charge of a deputy marshal of the united states for the district who was not sworn as bailiff of this jury and the only oath ever administered to whom was as deputy marshal many months before the trial and quote that the court instructed the jury in this case that they must not separate must not talk to each other and must not allow themselves to be talked to by any party on the outside about this case end of quote it would have been according to the more usual and regular practice to administer a special oath to the officer put in charge of a jury but the jury were in charge of a deputy marshal which taken an oath that he would quote in all things well and truly and without malice or partiality perform the duties of the office of marshal's deputy end of quote no objection to his taking charge of the jury without a new oath was made at any stage of the trial the jury were duly cautioned by the court not to separate nor to allow any other person to talk to them about the case and there was nothing tending to show that the jury were exposed to any influence that might interfere with the impartial performance of their duties or in a way prejudice the defendant such being the facts the court was not obliged as a matter of law to set aside the verdict because no special oath had been administered to the officer in charge of the jury no other question of the law affecting the defendants John C. Ball and Robert E. Boutwell is presented by the copy of records submitted to this court in which by stipulation of counsel has been agreed to contain everything that is material judgment reversed as to Millard F. Ball and affirmed as to the other defendants end of section 10 section 11 of a collection of supreme court opinions by the United States supreme court this is a LibriVox recording all LibriVox recordings are in the public domain for more information or to volunteer please visit LibriVox.org recording by L. C. Selwyn United States vs. Wong Kim Ark 169 U.S. 649 D.S. March 27th 1898 part 1 please note this is a reading of the opinion of the court only this reading does not include the syllabus or any concurring or dissenting opinions for ease of listening this reading emits legal citations found within the text of the court's opinion Mr. Justice Gray after stating the case delivered the opinion of the court the facts of this case as agreed by the parties are as follows Wong Kim Ark was born in 1873 in the city of San Francisco in the state of California and United States of America and was and is a laborer his father and mother were persons of Chinese descent and subjects of the emperor of China they were at the time of his birth domiciled residents of the United States having previously established and still enjoying a permanent domicile and residence therein at San Francisco continued to reside and remain in the United States until 1890 when they departed for China and during all the time of their residence in the United States they were engaged in business and were never employed in any diplomatic or official capacity under the emperor of China Wong Kim Ark ever since his birth has had but one residence to Witt and California within the United States and has there resided claiming to be a citizen of the United States and has never lost or changed that residence or gained or acquired another residence and neither he nor his parents acting for him ever renounced his allegiance to the United States or did or committed any act or thing to exclude him there from in 1890 when he must have been about 17 years of age he departed for China on a temporary visit with the intention of returning to the United States and did return there too by sea in the same year and was permitted by the collector of customs to enter the United States under the sole ground that he was a native born citizen of the United States after such return he remained in the United States claiming to be a citizen thereof until 1894 when he being about 21 years of age but whether a little above that age does not appear again departed for China on a temporary visit and with the intention of returning to the United States and he did return there too by sea in August 1895 and applied to the collector of customs for permission to land and was denied such permission upon the sole ground that he was not a citizen of the United States it is conceded that if he is a citizen of the United States the acts of Congress known as the Chinese Exclusion Acts prohibiting persons of the Chinese race and especially Chinese laborers from coming into the United States do not and cannot apply to him the question presented by the record is 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 permanent domicile 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 by virtue of the first clause of the 14th amendment of the Constitution quote all persons born or naturalized in the United States and subject to the jurisdiction thereof of the citizens of the United States and of the state wherein they reside end quote in construing any act of legislation whether a statuette enacted by the legislature or a constitution established by the people as the supreme law of the land regard is to be had not only to all parts of the act itself and of any former act of the same law making power of which the act in question is an amendment but also to the condition and history of the laws previously existing and in the light of which the new act must be read and interpreted the constitution of the United States as originally adopted uses the words quote citizen of the United States and quote natural born citizen of the United States end quote by the original constitution every representative in congress is required to have been quote seven years a citizen of the United States end quote and every senator to have been quote nine years a citizen of the United States end quote and quote no person except a natural born citizen or a citizen of the United States at the time of the adoption of this constitution shall be eligible to the office of president end quote the fourteenth article of amendment besides declaring that quote 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 end quote also declares that quote no state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States 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 end quote and the fifteenth article of amendment declares that quote 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 end quote the constitution nowhere defines the meaning of these words either by way of inclusion or of exclusion except insofar as this is done by the affirmative declaration that quote all persons born or naturalized in the United States and subject to the jurisdiction thereof are citizens of the United States end quote and this as in other respects it must be interpreted in the light of the common law the principles and history of which were familiarly known to the framers of the constitution the language of the constitution as has been well said could not be understood without reference to the common law end minor versus haperset chief justice wait when construing in behalf of the court the very provision of the fourteenth amendment now in question said quote the constitution does not in words say who shall be natural born citizens resort must be had elsewhere to ascertain that end quote and he proceeded to resort to the common law as an aid in the construction of this provision and smith versus alabama mister justice matthews delivering the judgment of the court said quote there is no common law of the united states in the sense of a national customary law distinct from the common law of england as adapted by the several states each for itself applied as its local law and subject to such alteration as may be provided by its own statutes there is however one clear exception to the statement that there is no national common law the interpretation of the constitution of the united states as necessarily influenced by the fact that its provisions are framed in the language of the english common law and are to be read in the light of its history to the fundamental principle of the common law with regard to english nationality was birth within the allegiance also called legality obedience faith or power of the king the principle embraced all persons born within the king's allegiance and subject to his protection such allegiance and protection were mutual as expressed in the maxim protectio trahit subjectonium at subjectio protectionum and were not restricted to natural born subjects and naturalized subjects or to those who had taken in oath of allegiance but were predicable of aliens and amity so long as they were within the kingdom children born in england of such aliens were therefore natural born subjects but the children born within the realm of foreign ambassadors or the children of alien enemies born during their hostile occupation of part of the king's dominions were not natural born subjects because not born within the allegiance the obedience or the power or as would be said at this day within the jurisdiction of the king this fundamental principle with these qualifications or explanations of it was clearly though stated in the leading case known as calvin's case or the case of the post mati decided in 1608 after a hearing in the ex checker chamber before the lord chancellor and all the judges of england and reported by lord coke and by lord ellis mur the english authorities ever since are to the like effect in udni verses udni 1869 l r r 1 h l s c 441 the point decided was one of inheritance depending upon the question whether the domicile of the father was in england or in scotland he being an either alternative a british subject lord chancellor heather lay said quote the question of naturalization and of allegiance is distinct from that of domicile end quote p 452 lord westbury and the passage relied on by the council for the united states began by saying quote the law of england and of almost all civilized countries ascribes to each individual at his birth to distinct legal states or conditions one by virtue of which he becomes the subject of some particular country binding him by the tie of natural allegiance in which may be called his political status another by virtue of which he has ascribed to him the character of a citizen of some particular country and as such is possessed of certain municipal rights and subject to certain obligations which latter character is the civil status or condition of the individual and may be quite different from his political status end quote and then while maintaining that the civil status is universally governed by the single principle of domicile domicilium the criterion established by international law for the purpose of determining civil status and the basis on which quote the personal rights of the party that is to say the law which determines his majority or minority his marriage succession test to see or in test to see must depend end quote he yet distinctly recognized that a man's political status his country, patria and his quote nationality that is natural allegiance may depend on different laws in different countries end quote pp 457 460 it evidently used the word citizen not as equivalent to subject but rather to inhabitant and had no thought of impeaching the established rule that all persons born under British dominion are natural born subjects Lord Chief Justice Cockburn in the same year reviewing the whole matter said quote by the common law of England every person born within the dominions of the crown no matter whether English or a foreign parents and in the latter case whether the parents were settled or merely temporarily sojourning in the country with an English subject save only the children of foreign ambassadors who were accepted 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 no effect appears to have been given to dissent as a source of nationality end quote Cockburn on nationality 7 Mr. Dicey in his careful and thoughtful digest of the law of England with reference to the conflict of laws published in 1896 states the following propositions his principal rules being printed below an italics quote British subject means any person who owes permanent allegiance to the crown permanent allegiance is used to distinguish the allegiance of a British subject from the allegiance of an alien who because he is within the British dominions temporary allegiance to the crown natural born British subject means a British subject who has become a British subject at the moment of his birth subject to the exceptions here and after mentioned any person who whatever the nationality of his parents is born within the British dominions is a natural born British subject this rule contains the leading principal of English law on the subject of British nationality end quote the exceptions after words mentioned by Mr. Dicey are only these two quote one any person who has father being an alien enemy is born in a part of the British dominions which at the time of such persons birth is in hostile occupation is an alien two any person whose father being an alien is at the time of such persons birth an ambassador or other diplomatic agent accredited to the crown by the sovereign of a foreign state is though born within the British dominions alien end quote and he adds quote the exceptional and unimportant instances in which birth within the British dominions does not of itself confer British nationality are due to the fact that though at common law nationality or allegiance and substance depended on the place of a persons birth in theory at least depended not upon the locality of a mans birth but upon his being born within the jurisdiction and allegiance of the king of England and it might occasionally happen that a person was born within the dominions without being born within the allegiance or in other words under the protection and control of the crown end quote Dicey conflict of laws pages 173 to 177 741 it thus clearly appears that by the law of England for the last three centuries beginning before the settlement of this country and continuing to the present day aliens while residing in the dominions possessed by the crown of England were within the allegiance the obedience the faith or loyalty the protection the power the jurisdiction of the English sovereign and therefore every child born in England of alien parents the child born subject unless the child of an ambassador or other diplomatic agent of a foreign state or of an alien enemy and hostile occupation of the place where the child was born 3 the same rule was in for us in all of the English colonies upon this continent down to the time of the declaration of independence and in the United States afterwards and continuing to prevail on the decision as originally established in the early case of the charming Betsy 1804 it appears to have been assumed by this court that all persons born in the United States were citizens of the United States Chief Justice Marshall saying quote whether a person born within the United States or becoming a citizen according to the established laws of the country can divest himself absolutely of that character otherwise that in such manner as may be prescribed by law is a question which it is not necessary at present to decide 2 cronch 64 119 in English versus sailors snug harbor 1833 3 pet 99 in which the plaintiff was born in the city of New York about the time of the declaration of independence the justices of this court while differing in opinion upon other points all agreed that the law of England as to citizenship by birth was the law of the English colonies in America Mr. Justice Thompson speaking for the majority of the court said quote it is universally admitted both in the English courts and in those of our own country that all persons born within the colonies of North America whilst subject to the crown of Great Britain are natural born British subjects end quote 3 pet 120 Mr. Justice Johnson said quote he was entitled to inherit as a citizen born of the state of New York end quote 3 pet 136 Mr. Justice story stated the reasons upon this point more at large referring to Calvin's case Blackstone's commentaries and Doe versus Jones above sighted and saying quote allegiance is nothing more than the tie or duty of obedience of a subject to the sovereign under whose protection he is and allegiance by birth is that which arises from being born within the dominions and under the protection of a particular sovereign two things usually concur to create citizenship first birth locally within the dominions of the sovereign and secondly birth within the protection and obedience or in other words within the allegiance of the sovereign that is the party must be born within a place where the sovereign is at the time and full possession and exercise of his power and the party must also at his birth derive protection from and consequently owe obedience for allegiance to the sovereign as such de facto there are some exceptions which are founded upon peculiar reasons and which indeed illustrate and confirm the general doctrine thus a person who is born on the ocean as a subject of the prince to whom his parents then owe allegiance for he is still deemed under the protection of his sovereign and born in a place where he has dominion in common with all other sovereigns so the children of an ambassador held to be subjects of the prince whom he represents although born under the actual protection and in the dominions of a foreign prince and quote three pet 155 quote the children of enemies born in a place within the dominions of another sovereign then occupied by them by conquest are still aliens and quote three pet 156 quote nothing is better settled at the common law than the doctrine that the children even of aliens born in a country while the parents are resident there under the protection of the government and owing a temporary allegiance there too are subjects by birth and quote three pet 164 and shanks versus du pont three pet 242 decided as appears by the records of this court on the same day as the last case it was held that a woman born in south carolina before the declaration of independence married to an english officer on charleston during its occupation by the british forces in the revolutionary war and accompanying her husband on his return to england and there remaining until her death was a british subject within the meaning of the treaty of peace of 1783 so that her title to land and south carolina by dissent cast before that treaty was protected thereby it was of such a case that mr. justice story delivering the opinion of the court said quote to the incapacities of fem's covert provided by the common law apply to their civil rights and are for their protection and interest but they 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 and quote 3 pet 248 this last sentence was relied on by the council for the united states as showing that the question whether a person is a citizen of a particular country is to be determined not by the law of that country but by the principles of international law but mr. justice story certainly did not mean to suggest that independently of treaty there was any principle of international law which could defeat the operation of the established rule of citizenship by birth within the united states for he preferred page 245 to the contemporaneous opinions in english versus sailors snug harbor above sided in which this rule had been distinctly recognized and in which he had said page 162 that quote each government had a right to decide for itself who should be admitted or deemed citizens end quote and in his treaties on the conflict of laws published in 1834 he said that in respect to the residents in different countries or sovereign tees quote there are certain principles which have been generally recognized by tribunals administering public law adding in later editions or the law of nations as of unquestionable authority end quote and stated as the first of those principles quote persons who are born in a country are generally deemed citizens and subjects of that country end quote story conflict of laws the english statute of 11 in 12 will 3 1700 c6 entitled quote an act to enable his majesty's natural born subjects to inherit the estate of their ancestors either linear or collateral notwithstanding their father or mother were aliens end quote and acted that quote all in every person or persons being the king's natural born subject or subjects within any of the king's realms or dominions end quote might and should thereafter lawfully inherit and make their titles by origin to any lands quote from any of their ancestors linear or collateral although the father and mother or father or mother or other ancestor of such person or persons by from through or under whom title should be made or derived had been or should be born out of king's allegiance and out of his majesty's realms and dominions end quote as fully and effectually as if such parents or ancestors quote had been naturalized or natural born subjects or subjects within the king's dominions end quote seven statutes of the realm 90 it may be observed that throughout that statute persons born within the realm although children of alien parents were called natural born subjects as that statute included persons born quote within any of the king's realms or dominions end quote it of course extended to the colonies and not having been repealed in Maryland was enforced there in McCreary versus Somerville 1824 9 wheat 354 which concerned the title to land in the state of Maryland it was assumed that children born in that state of an alien who was still living and who had not been naturalized were native born citizens of the United States and without such assumption the case would not have presented the question decided by the court which as stated by Mr. Justice story in delivering the opinion was quote whether the statute applies to the case of a living alien ancestor so as to create a title by airship where none would exist by the common law if the ancestor were a natural born subject end quote 9 wheat 356 again and levy versus McCarty 1832 6 pet 102 112 113 115 which concerned a dissent cast since the American Revolution in the state of New York where the statute of 11 and 12 will 3 have been repealed this court speaking by Mr. Justice story held that the case must rest for its decision exclusively upon the principles of the common law and treated it as unquestionable that by that law a child born in England of alien parents was a natural born subject quoting the statement of Lord Coke and co-lit 8a that quote if an alien cometh into England and hath issued two sons these two sons are indigenei subjects born because they are born within the realm end quote and saying that such a child quote was a native born subject according to the principles of the common law stated by this court and McCreary versus Somerville 9 wheat 354 end quote in dread Scott versus Sandford 1857 19 how 393 Mr. Justice Curtis said quote the first section of the second article of the Constitution addresses the language in natural born citizen it does assumes that citizenship may be acquired by birth undoubtedly this language of the Constitution was used in reference to that principle of public law well understood in this country at the time of the adoption of the Constitution which referred citizenship to the place of birth end quote 19 how 576 and to this extent a different opinion was expressed or intimated by any of the other judges in the United States versus Rhodes 1866 Mr. Justice swing sitting in the circuit court said quote all persons born in the allegiance of the king are natural born subjects and all persons born in the allegiance of the United States are natural born citizens birth and allegiance go together such is the rule of the common law and it is the common law of this country as well as of England we find no warrant for the opinion that this great principle of common law has ever been changed in the United States it has always obtained here with the same figure and subject only to the same exceptions since as before the revolution end quote end of section 11 section 12 of a collection of Supreme Court opinions by the United States Supreme Court this is the LibriVox recording all LibriVox recordings are in the public domain for more information or to volunteer please visit LibriVox.org recording by Elsie Selwyn United States versus Wong Kim Ark 169 US 649 decided March 27th 1898 part 2 please note this is a reading of the opinion of the court only this reading does not include syllabus or any concurring or dissenting opinions for ease of listening this reading omits legal citations found within the text of the court's opinion the Supreme Judicial Court of Massachusetts speaking by Mr. Justice afterwards Chief Justice so while early held that the determination of the question whether a man was a citizen alien was to be governed all together by the principles of the common law end quote and that it was established with few exceptions quote that a man born within the jurisdiction of the common law is a citizen of the country wherein he is born by this circumstance of his birth he is subjected to the duty of allegiance which is claimed and enforced by the sovereign of his native land which is reciprocally entitled to the protection of that sovereign and to the other rights and advantages which are included in the term citizenship end quote garter versus ward 1805 to Massachusetts 244 note and again quote the doctrine of the common law is that every man born within its jurisdiction is the subject of the sovereign of the country where he is born and allegiance is not personal to the sovereign in the extent that has been contended for it is due to him and his political capacity of sovereign of the territory where the person owing the allegiance as born end of quote calhoun versus ward 1806 to Massachusetts 236 265 it may here be observed that in a recent Lord Coleridge expressed the opinion of the queen's bench division that the statutes of four go to 1731 C1 and 13 go 3 1773 C21 here and after referred to quote clearly recognized that to the king in his politic and not in his personal capacity is the allegiance of his subjects do quote the Supreme Court of North Carolina speaking by Mr. Justice Gaston said quote before our revolution all three persons born within the dominions of the king of Great Britain whatever their color or complexion were native born British subjects those born out of his allegiance were aliens upon the revolution no other change took place in the law of North Carolina then was consequent upon the transition from a colony dependent on an European king to a free and sovereign state British subjects in North Carolina became North Carolina freemen and all free persons born within the state are born citizens of the state the term citizen as understood in our law is precisely analogous to the term subject in the common law and the change of phrase has entirely resulted from the change of government the sovereignty has been transferred from one man to the collective body of the people and he who before as a subject of the king is now a citizen of the state end quote that all children born within the dominion of the united states of foreign parents holding no diplomatic office became citizens at the time of their birth does not appear to have been contested or doubted until more than two years after the adoption of the constitution when the matter was elaborately argued in the court of chancellery of new york and decided upon full consideration by vice chancellor sanford in favor of their citizenship the same doctrine was repeatedly affirmed in the executive departments as for instance by mr marcy secretary of state in 1854 to wart and dig second edition page in 1924 by attorney general black in 1859 and by attorney general bates in 1862 chancellor kent and his commentaries speaking of the quote general division of the inhabitants of every country under the comprehensive title of aliens and natives and quote says quote natives are all persons born within the jurisdiction and allegiance of the united states this is the rule of the common law without any regard or reference to the political condition or allegiance of their parents with the exception of the children of ambassadors who are in theory born within the allegiance of the foreign power they represent to create allegiance by birth the party must be born not only within the territory but within the allegiance of the government if a portion of the country be taken and held by conquest in war the conqueror acquires the rights of the conquered as to its dominion and government and children born in the armies of a state while abroad and occupying a foreign country are deemed to be born in the allegiance of the sovereign to whom the army belongs it is equally the doctrine of the english common law that during such hostile occupation of a territory and the parents be adhering to the enemy as subjects de facto their children born under such a temporary dominion are not born under the allegiance of the conquered and if that common law all human beings born within the allegiance of the king and under the king's obedience were natural born subjects and not aliens i do not perceive why this doctrine does not apply to these united states in all cases in which there is no express constitutional or statuette declaration to the contrary subject and citizen are in a degree convertible terms as applied to natives and though the term citizen seems to be appropriate to republican freemen yet we are equally with the inhabitants of all other countries subjects for we are equally bound by allegiance and subjection to the government and law of the land end quote Mr. Binney in the second edition of a paper on the alien knee jenai of the united states printed in pamphlet at philadelphia with the preface bearing his signature and the date of December 1st 1853 said quote the common law principle of allegiance was the law of all the states at the time of the revolution and at the adoption of the constitution and by that principle the citizens of the united states are with the exceptions before mentioned namely foreign born children of citizens under statuettes to be presently such only as are either born or made so born within the limits and under the jurisdiction of the united states or naturalized by the authority of law either in one of the states before the constitution or since that time by virtue of an act of the congress of the united states the right of citizenship never descends in the legal sense either by the common law or under the common naturalization acts it is incident to birth in the country where it is given personally by statuette the child of an alien born in the country is as much a citizen as the natural born child of a citizen and by operation of the same principle end quote this paper without Mr. Binney's name and with the note in a less complete form and not containing the passage last cited was published perhaps from the first edition in the American law register for February 1854 4 it was contended by one of the learned council for the united states that the rule of the roman law by which the citizenship of the child followed that of the parent was the true rule of international law as now recognized in most civilized countries and had superseded the rule of the common law depending on birth within the realm originally founded on feudal considerations but at the time of the adoption of the constitution in the united states in 1789 and long before would seem to have been the rule in Europe generally as it certainly was in France that as said by Pothier quote citizens true and native born citizens are those who are born within the extent of the dominion of France end quote and quote mere birth within the realm gives the rights of a native born citizen independently of the origin of the father or mother and of their domicile end of quote and children born in a foreign country of a french father who had not established his domicile there nor given up the intention of returning were also deemed frenchmen as Laurent says by quote a favor a sort of fiction end quote and calvo quote by a sort of fiction of extraterritoriality considered as born in France and therefore invested with french nationality end quote the general principle of citizenship by birth within french territory prevailed until after the french revolution and was affirmed in successive constitutions from the one adopted by the constituent assembly in 1791 to that of the french republic in 1799 the code Napoleon of 1807 changed the law of France and adopted instead of the rule of country of birth the rule of descent or blood as the leading principle but an eminent commentator has observed that the framers of that code quote appear not to have wholly freed themselves from the ancient rule of France or rather indeed ancient rule of Europe de la vielle règle françois ou plutôt de la vielle règle europeine according to which nationality had always been in former times determined by the place of birth end quote and have no important bearing upon the interpretation in effect of the constitution of the united states the english naturalization act of 33 vict 1870 c 14 and the commissioners report of 1869 out of which it grew both bear date since the adoption of the 14th amendment of the constitution of 1860 and of course the 14th amendment of the constitution and as observed by mr. dicey that act has not affected the principle by which any person who whatever the nationality of his parents is born within the british dominions acquires british nationality at birth and is a natural born british subject at the time of the passage of that act although the tendency on the continent of europe was to make parentage rather than birthplace the criterion of nationality and citizenship was denied to the native born children of foreign parents in germany switzerland sweden and norway yet it appears still to have been conferred upon such children and holland danmark and portugal and when claimed under certain specified conditions in france belgium spain italy greece and russia there is therefore little ground for the theory that at the time of the adoption of the 14th amendment of the united states there as any settled and definite rule of international law generally recognized by civilized nations inconsistent with the ancient rule of citizenship by birth within the dominion nor can it be doubted that it is the inherent right of every independent nation to determine for itself and according to its own constitution and laws what classes of persons shall be entitled to its citizenship both in england and in the united states indeed statutes have been passed at various times enacting that certain issue born abroad of english subjects or of american citizens respectively should inherit to some extent at least the rights of their parents but those statutes applied only to cases coming within their purport and they have never been considered in either country as affecting the citizenship of persons born within its dominion the earliest statute was passed in the reign of edward the third in the roles of parliament of 17 edward the third 1343 it is stated that before these times there have been great doubt and difficulty among the lords of this realm in the commons as well men of the law as others whether children who are born in parts beyond sea ought to bear inheritance after the death of their ancestors in england because no certain law has been there on ordained end quote and by the king lords in commons it was unanimously agreed that quote there was no manner of doubt that the children of our lord the king whether they were born on this side of the sea or beyond the sea should bear the inheritance of their ancestors and in regard to other children it was agreed in this parliament that they also should inherit wherever they might be born in the service of the king end quote but because the parliament was about to depart and the business demanded great advisement and good deliberation how it should be best and most surely done the making of the statuette was put off to the next parliament by reason apparently of the prevalence of the plague in england no act upon the subject was passed until 5 edward the third 1350 when parliament passed an act entitled quote a statute for those who are born in parts beyond sea end quote by which after reciting that quote some people be in doubt if the children born in the parts beyond the sea out of the legions of england should be able to demand any inheritance within the same legions or not whereof a petition was put in the parliament of 17 edward the third and as not at the same time holy assented it was agreed and affirmed quote that the law of the crown of england reason always hath been such that the children of the kings of england in whatsoever parts they be born in england or elsewhere be able and ought to bear the inheritance after the death of their ancestors 2 also agreed that certain persons named which were born beyond the sea out of the legions of england shall be from henceforth able to have and enjoy their inheritance after the death of their ancestors in all parts within the legions of england as well as those that should be born within the same legions 3 and further agreed that all children inheritors which from henceforth shall be born without the legions of the king whose fathers and mothers at the time of their birth be and shall be at the faith and legions of the king of england shall have and enjoy the same benefits and advantages to have and bear the inheritance within the same legions as the other inheritors aforesaid and time to come so always that the mothers of such children do pass the sea by the license and wills of their husbands end quote it has sometimes been suggested that this general provision of the statuette of 25 Edward 3 was declaratory of the common law but all suggestions to that effect seem to have been derived immediately or ultimately from one or the other of these two sources the one the year book of one Richard the third 1483 while four P.L. 7 reporting a saying of Hussie C.J. quote that he who was born diancy and his father and mother are English their issue inherit by the common law but the statuette makes clear etc. end quote which at best was but obiter dictum for the chief justice appears to have finally rested his opinion on the statuette the other a note added to the addition of 1688 Dyer's reports 184a stating that at Trinity term 7 Edward the third wrought to B.R. it was a judged that children of subjects born beyond the sea in the service of the king were inheritable which has been shown by a search of the role in the king's bench so referred to to be a mistake in so much as the child there in question did not appear to have been born beyond sea but only to be living abroad the statuette of 5 Edward the third recites the existence of doubts as to the right of foreign born children to inherit in England and while it is declaratory of the rights of children of the king and is retrospective as to the person specifically named yet as to all others it is in terms merely prospective applying to those only quote who shall be born hence forth end quote there is nothing in the statuette which would justify the conclusion that it is declaratory of the common law in any but a single particular namely in regard to the children of the king nor has it at any time been judicially held to be so the notion that there is any common law principle to naturalize the children born in foreign countries of native born American father and mother father or mother of the nation father and mother father or mother must be discarded there is not and never was any such common law principle end quote in the great weight of the English authorities before and since he wrote appears to support his conclusion quote the acquisition end quote says Mr. Dicey page 741 quote of nationality by dissent is foreign to the principles of the common law and is based on statuatory enactments end quote it has been pertinently observed that if the statuette of Edward III had only been declaratory of the common law the subsequent legislation on the subject would have been wholly unnecessary by the statuette of 29 Charles II 1677 entitled quote an act for the naturalization of children of his majesty subjects born in foreign countries late troubles end quote all persons who at any time between June 14th 1641 and March 24th 1660 quote were born out of his majesty's dominions and whose fathers or mothers were natural born subjects of this realm end quote were declared to be natural born subjects by the statuette of 7 and 1708 quote the children of all natural born subjects born out of the legions of her majesty her heirs and successors end quote explained by the statuette of 4 George II 1731 to mean all children born out of the legions of the crown of England quote whose fathers were or shall be natural born subjects of the crown of England or of Great Britain at the time of the birth of such children respectively shall be deemed a judged and taken to be natural born subjects of this kingdom to all intents constructions and purposes whatsoever end quote that statuette was limited to foreign born children of natural born subjects and was extended by the statuette of 13 George III 1773 to foreign born grandchildren of natural born subjects but not to the issue of such grandchildren or as put by Mr. Dicey quote British nationality does not pass by descent or inheritance beyond the second generation end quote over under those statuettes as is stated in the report in 1869 of the commissioners for inquiring into the laws of naturalization and allegiance quote no attempt has ever been made on the part of the British government unless in eastern countries where special jurisdiction is conceded by treaty to enforce claims upon or to assert rights in respect of persons born abroad as against the country of their birth whilst they were resident therein and when by its laws they were invested with its nationality end quote in the appendix to the report are collected many such cases in which the British government declined to interpose the reasons being most clearly brought out in dispatch of March 13th 1858 from Lord Malmesbury the foreign secretary to the British ambassador at Paris saying quote it is competent to any country to confer by general legislation the privileges of nationality upon those who are born out of its own territory but it cannot confer such privileges upon such persons as against the country of their birth when they voluntarily return to and reside therein those born in the territory of a nation are as a general principle liable when actually therein to the obligations incident to their status by birth Great Britain considers and treats such persons as natural born subjects and cannot therefore deny the right of other nations to do the same but Great Britain cannot permit the nationality of the children of foreign parrots born within her territory to be questioned end quote by the constitution of the united states congress was empowered quote to establish a uniform rule of naturalization end quote and the exercise of this power congress by successive acts beginning with the act entitled quote an act to establish a uniform rule of naturalization end quote passed at the second session of the first congress under the constitution has made provision for the admission to citizenship of three principle classes of persons first aliens having resided for a certain time quote within the limits and under the jurisdiction of the united states end quote and naturalized individually by proceedings in a court of record second children of persons of naturalized quote dwelling within the united states and being under the age of 21 years at the time of such naturalization end quote third foreign born children of American citizens coming within the definitions prescribed by congress and the act of 1790 the provision as to foreign born children of American citizens was as follows quote the children of citizens of the united states that may be born beyond sea or out of the limits of the united states shall be considered as natural born citizens provided that the right of citizenship shall not descend to persons whose fathers have never been resident in the united states end quote in 1795 this was reenacted in the same words except in substituting for the words quote beyond sea or out of the limits of the united states end quote the words quote out of the limits and jurisdiction of the united states end quote in 1802 all former acts were repealed in the provisions concerning children of citizens were reenacted in this form quote the children of persons duly naturalized under any of the laws of the united states or who previous to the passing of any law on that subject by the government of the united states may have become citizens of any one of the said states under the laws thereof being under the age of 21 years at the time of their parents being so naturalized or admitted to the rights of citizenship shall if dwelling in the united states be considered as citizens of the united states and the children of persons who now are or have been citizens of the united states shall though born out of the limits and jurisdiction of the united states be considered as citizens of the united states provided that the right of citizenship shall not descend to persons whose fathers have never resided within the united states end quote end of section 12 section 13 of a collection of supreme court opinions by the united states supreme court this is a LibriVox recording all LibriVox recordings are in the public domain for more information or to volunteer please visit LibriVox.org recording by Elsie Selwyn United States versus Wong Kim Ark 1849 U.S. 649 decided March 27 1898 part 3 please note this is a reading of the opinion of the court only this reading does not include the syllabus or any concurring or dissenting opinions for ease of listening this reading emits legal citations found within the text of the court's opinion act of April 14th 1802 154 to statuette 155 the provision of that act concerning quote the children of persons duly naturalized under any of the laws of the united states end quote not being restricted to the children of persons already naturalized might well be held to include children of persons thereafter to be naturalized but the provision concerning foreign born children being expressly limited to the children of persons who then were or had been citizens clearly did not include foreign born children of any person who became a citizen since its enactment Mr. Binney's paper as he states in his preface was printed by him in the hope that congress might supply this defect in our law in accordance with his suggestions it was enacted by the statuette of February 10th 1855 see 71 that quote persons here to foreborn hereafter to be born out of the limits and jurisdiction of the united states whose fathers were or shall be at the time of their birth citizens of the united states shall be deemed and considered and are hereby declared to be citizens of the united states provided however that the rights of citizenship shall not descend to persons whose fathers never resided in the united states end quote it thus clearly appears that during the half century intervening between 1802 and 1855 there was no legislation whatever for the citizenship of children born abroad during that period of American parents who had not become citizens of the united states before the act of 1802 and that the act of 1855 like every other act of congress upon the subject has by express proviso restricted the right of citizenship thereby conferred upon foreign born children of American citizens to those children themselves unless they became residents of the united states here is nothing to countenance the theory that a general rule of citizenship by blood or descent has displaced in this country the fundamental rule of citizenship by birth within its sovereignty so far as we are informed there is no authority legislative executive or judicial in england or america which maintains or intimates that the statutes whether considered as declaratory or as merely perspective conferring citizenship on foreign born children of citizens how superseded or restricted in any respect the established rule citizenship by birth within the dominion even those authorities in this country which have gone the farthest toward holding such statutes to be by declaratory of the common law distinctly recognized and emphatically asserted the citizenship of native born children of foreign parents passing by questions once earnestly controverted but finally put at rest by the 14th amendment of the constitution it is beyond doubt that before the enactment of the civil rights act of 1866 or the adoption of the constitutional amendment all white persons at least born within the sovereignty of the united states whether children of citizens or foreigners accepting only children of ambassadors or public ministers of a foreign government were native born citizens of the united states 5 in the forefront both of the 14th amendment of the constitution and of the civil rights act of 1866 the fundamental principle of citizenship by birth within the dominion was reaffirmed in the most explicit and comprehensive terms the civil rights act passed at the first session of the 39th congress began by enacting that quote all persons born in the united states and not subject to any foreign power excluding Indians not taxed are hereby declared to be citizens of the united states and such citizens of every race and color without regard to any previous condition of slavery or involuntary servitude except as a punishment for crime whereof the party have been duly convicted shall have the same right in every state and territory in the united states to make and enforce contracts to sue, be parties and give evidence to inherent purchase, lease sell, hold and convey real and personal property and to fool an equal benefit of all laws and proceedings for the security of person and property as is enjoyed by white citizens and shall be subject to like punishment, pains and penalties and to none other any law statute, ordinance, regulation or custom to the contrary notwithstanding the same congress shortly afterwards evidently thinking it unwise and perhaps unsafe to leave so important a declaration of rights to depend upon an ordinary act of legislation which might be repealed by any subsequent congress framed the 14th amendment of the constitution and on June 16, 1866 by joint resolution proposed it to the legislatures of the several states and on July 28, 1868 the secretary of state issued a proclamation showing it to have been ratified by the legislatures of the requisite number of states the first section of the 14th amendment of the constitution begins with the words quote 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 end quote as appears upon the face of the amendment as well as from the history of the times this was not intended to impose any new restrictions upon citizenship or to prevent any persons from becoming citizens by the fact of birth within the united states who would thereby have become citizens according to the law existing before its adoption as a declaratory inform in enabling and extending an effect its main purpose doubtless was as has often been recognized by this court to establish the citizenship of free negroes which had been denied in the opinion delivered by Chief Justice Taney and Dred Scott versus Sanford 1857 and to put it beyond doubt that all blacks as well as whites born or naturalized within the jurisdiction of the united states are citizens of the united states but the opening words quote all persons born end quote are general and not to say universal restricted only by place and jurisdiction and not by color or race as was clearly recognized in all the opinions delivered in the slaughterhouse cases above cited in those cases the point adjudged was that a statute of Louisiana granting to a particular corporation the exclusive right for 25 years to have and maintain slaughterhouses within a certain district including the city of New Orleans requiring all cattle intended for sale or slaughter in that district to be brought to the yards and slaughterhouses of the grantee authorizing all butchers to slaughter their cattle there and empowering the grantee to exact a reasonable fee for each animal slaughtered was within the police powers of the state and not in conflict with the 13th amendment of the constitution as creating a voluntary servitude nor within the 14th amendment as abridging the privileges or immunities of citizens of the united states or as depriving persons of their liberty or property without due process of law or as denying to them the equal protection of the laws Mr. Justice Miller delivering the opinion of the majority of the court after observing that the 13th, 14th and 15th articles of amendment of the constitution were all addressed to the grievances of the Negro race and were designed to remedy them continued as follows quote, we do not say that no one else but the Negro can share in this protection both the language and spirit of these articles are to have their fair and just way in any question of construction undoubtedly while Negro slavery alone was in the mind of the congress which proposed the 13th article it forbids any other kind of slavery now or hereafter if Mexican language or the Chinese Cooley labor system shall develop slavery of the Mexican or Chinese race within our territory this amendment may safely be trusted to make it void and so if other rights are assailed by the states which properly and necessarily fall within the protection of these articles that protection will apply though the party interested may not be of african descent end quote and in treating of the first clause said quote the distinction between citizenship of the United States and citizenship of a state is clearly recognized and established not only may a man be a citizen of the United States without being a citizen of a state but an important element is necessary to convert the former into the latter he must reside within the state to make him a citizen of it but it is only necessary that he should be born or naturalized in the United States to be a citizen of the union end quote Mr. Justice Field in a dissenting opinion in which Chief Justice Chase and Justice Swain and Bradley concurred said of the same clause quote it recognizes and express terms if it does not create citizens of the United States and it makes their citizenship dependent upon the place of their birth or the fact of their adoption and not upon the constitution or laws of any state or the condition of their ancestry end quote Mr. Justice Bradley also said quote the question is now settled by the 14th amendment itself that citizenship of the United States is the primary citizenship in this country and that state citizenship is secondary and derivative depending upon citizenship of the United States and the citizens place of residence the states have not now if they ever had any power to restrict their citizenship end quote and Mr. Justice Swain added quote the language employed is unqualified in its scope there is no exception in its terms and there can be properly none in their application by the language citizens of the United States was meant all citizens and by any person was meant all persons within the jurisdiction of the state no distinction is intimated on account of race or color this court has no authority to inter-polate a limitation that is neither expressed nor implied our duty is to execute the law not to make it the protection provided was not intended to be confined to those of any particular race or class but to embrace equally all races classes and conditions of men end quote Mr. Justice Miller indeed while discussing the causes which led to the adoption of the 14th amendment made this remark quote the phrase subject to its jurisdiction was intended to exclude from its operation children of ministers, consuls and citizens were subjects of foreign states born within the United States end quote this was wholly aside from the question and judgment and from the course of reasoning bearing upon that question it was unsupported by any argument or by any reference to authorities and that it was not formulated with the same care and exactness as if the case before the court had called for an exact definition of the phrase foreign ministers and consuls together whereas it was then well settled law as since men recognized in the judgment of this court in which Mr. Justice Miller concurred that consuls as such and unless expressly invested with the diplomatic character in addition to their ordinary powers are not considered as entrusted with authority to represent their sovereign in his intercourse with foreign states or to vindicate his prerogatives or entitled by the law of nations to the privileges and immunities of ambassadors or public ministers but are subject to the jurisdiction civil and criminal of the courts of the country in which they reside in weighing a remark uttered under such circumstances it is well to bear in mind the often quoted words of Chief Justice Marshall quote it is a maximum not to be disregarded that general expressions in every opinion are to be taken in connection with the case in which those expressions are used if they go beyond the case they may be respected but ought not to control the judgment in a subsequent suit when the very point is presented for decision the reason for this maximum is obvious the question actually before the court is investigated with care and considered in its full extent other principles which may serve to illustrate it are considered in their relation to the case decided but their possible bearing on all other cases is seldom completely investigated end quote under Mr. Justice Miller nor any of the justices who took part in the decision of the slaughterhouse cases understood the court did be committed to the view that all children born in the United States of citizens or subjects of foreign states were excluded from the operation of the first sense of the 14th amendment as manifest from a unanimous judgment of the court delivered but two years later while all those judges but Chief Justice Chase were still on the bench and which Chief Justice Waite said allegiance and protection are in this connection end quote that is in relation to citizenship quote reciprocal obligations the one is a compensation for the other allegiance for protection and protection for allegiance a common law with the nomenclature of which the framers of the Constitution were familiar it was never doubted that all children born in a country of parents who were citizens became themselves upon their birth citizens also these were natives or natural born citizens as distinguished from aliens or foreigners some authorities go further and include as citizens children born within the jurisdiction without reference to the citizenship of their parents as to this class there have been doubts but never as to the first for the purposes of this case it is not necessary to sell these doubts it is sufficient for everything we have now to consider that all children born of citizen parents within the jurisdiction are themselves citizens end quote minor versus haperset 1874 the decision in that case was that a woman born of citizen parents within the United States was a citizen of the United States although not entitled to vote the right to the elective franchise not being essential to citizenship the only adjudication that has been made by this court upon the meaning of the clause quote in subject to the jurisdiction thereof end quote and the leading provision of the 14th amendment is elk v. Wilkins 112 us 94 in which it was decided that an Indian born a member of one of the Indian tribes within the United States which still existed and was recognized as an Indian tribe by the United States who had voluntarily separated himself from his tribe and taken up his residence among the white citizens of the state but who did not appear to have been any way recognized or treated as a citizen either by the United States or by the state was not a citizen of the United States as a quote person born in the United States and subject to the jurisdiction thereof end quote within the meaning of the clause in question that decision was placed upon the grounds that the meaning of those words was quote not merely subject in some respect or degree to the jurisdiction of the United States but completely subject to their political jurisdiction and direct and immediate allegiance end quote that by the constitution as originally established quote Indians not taxed end quote were excluded from the persons according to whose numbers represented in congress and direct taxes were apportioned among the several states and congress was empowered to regulate commerce not only with four nations and among the several states but with the Indian tribes being within the territorial limits of the United States were not strictly speaking foreign states but were alien nations distinct political communities the members of which owed immediate allegiance to their several tribes and were not part of the people of the United States that the alien independent condition of the members of one of those tribes could not be put off at their own well without the action or assent of the United States and that they were never deemed citizens except when naturalized collectively or individually under explicit provisions of a treaty or have an act of congress and therefore that quote Indians born within the territorial limits of the United States members of and owed immediate allegiance to one of the Indian tribes an alien though dependent power although on a geographical sense born in the United States are no more quote born in the United States and subject to the jurisdiction thereof end quote within the meaning of the first section of the 14th amendment then 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 end quote was observed that the language used in defining citizenship in the first section of the civil rights act of 1866 by the very congress which frame the 14th amendment was quote all persons born and the United States and not subject to any foreign power excluding Indians not taxed end quote Mr. Justice Harlan and Mr. Justice Woods dissenting were of opinion that the Indian in question having severed himself from his tribe and become a bona fide resident of the state have thereby become subject to the jurisdiction of the United States within the meaning of the 14th amendment and in reference to the civil rights act of 1866 said quote beyond question by that act national citizenship was conferred directly upon all persons in this country of whatever race excluding only Indians not taxed who were born within the territorial limits of the United States and were not subject to any foreign power end quote and that view was supported by reference to the debates in the senate upon that act and to the ineffectual veto thereof of President Johnson in which he said quote by the first section of the bill all persons born in the United States and not subject to any foreign power excluding Indians not taxed are declared to be citizens of the United States this provision comprehends the Chinese of the Pacific States Indians subject to taxation the people called gypsies as well as the entire race designated as blacks persons of color, negroes, mulattoes and persons of African blood every individual of those races born in the United States is by the bill made a citizen of the United States end quote the decision in elk versus Wilkins concerned only members of the Indian tribes within the United States and had no tendency to deny citizenship to children born in the United States of foreign parents of Caucasian African or Mongolian descent not in the diplomatic service of a foreign country the real object of the 14th amendment of the constitution and qualifying the words quote all persons born in the United States end quote and subject to the jurisdiction thereof end quote would appear to have been to exclude by the fewest and fittest words besides children of members of the Indian tribes standing in a peculiar relation to the national government unknown to the common law the two classes of cases children born of alien enemies in hostile occupation and children of diplomatic representatives of a foreign state both of which as has already been shown by the law of England by our own law from the time of the first settlement of the English colonies in America have been recognized exceptions to the fundamental rules of citizenship by birth within the country the principles upon which each of those exceptions rests were long ago distinctly stated by this court an United States versus rice 1819 for wheat 246 goods imported into Castine in the state of Maine while it was in the exclusive possession of the British authorities during the last war with England were held not to be subject to duties under the revenue laws of the United States because as was said by Mr. Justice story and delivering judgment quote by the conquest and military occupation of Castine the enemy acquired that firm possession which enabled him to exercise the fullest rights of sovereignty over that place the sovereignty of the United States over the territory was expended and the laws of the United States could no longer be rightfully enforced there or be obligatory upon the inhabitants who remained and submitted to the conquerors by the surrender the inhabitants passed under a temporary allegiance to the British government and were bound by such laws and such only as it chose to recognize and impose from the nature of the case no other laws could be obligatory upon them for when there is no protection or allegiance or sovereignty there can be no claim to obedience and quote end of section 13