In the case of United States v. Wong Kim Ark,20 decided in 1898, the Supreme Court was called upon to determine whether, under the terms of the Fourteenth Amendment, persons born in the United States of alien parents, are citizens of the United States. In this case the question was as to the citizenship of a child of Chinese parents who not only were not citizens of the United States, but could not, under the existing laws, become such by naturalization. In sustaining Ark's citizenship the court held that the clause of the Amendment declaring that "all per-sons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States," is but declaratory of the common law principle unreservedly accepted in England since Calvin's case (the case of Postnati, decided in 1608) and in the United States since the Declaration of Independence, that all persons, irrespective of the nationality of their parents born within the territorial limits of a State, are ipso facto, citizens of that State. The court admitted that the principle of the Roman law according to which the citizenship of the child follows that of the parent, irrespective of the place of birth, had been accepted by certain of the European nations, but denied that this principle had become a true and universal rule of international law, or if it had, that it had thereby superseded the rule of the common law.21

19 See ante, § 83.

20 169 U. S. 649; 18 Sup. Ct. Rep. 456; 42 L. ed. 890.

The opinion declares: "The first section of the Fourteenth Amendment of the Constitution begins with the words, '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.' 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.22 It is declaratory in form, and enabling and extending in effect. Its main purpose doubtless was, as has been often recognized by this court, to establish the citizenship of free negroes, which had been denied in the opinion delivered by Chief Justice Taney in Dred Soott v. Sandford, 1857,23 and to put it beyond doubt that all blacks, as well as whites, born or naturalized within the juris-diction of the United .States, are citizens of the United States."4 But the opening words, 'All persons born,' are general, 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 Slaughter House Cases above cited."

21 The court say: "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 in Holland, Denmark, and Portugal, and, when claimed under certain specified conditions, in France, Belgium, Spain, Italy, Greece, and Russia. Cockburn, Nationality, 14-21. There is, therefore, little ground for the theory that, at the time of the adoption of the Fourteenth Amendment of the Constitution of the United States, there was 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. ... 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 prospective), conferring citizenship on foreign-born children of citizens, have superseded or restricted, in any respect, the established rule of citizenship by birth within the dominion. Even those authorities in this country which have gone the farthest toward holding such statutes to be declaratory of the common law, have distinctly recognized and emphatically asserted the citizenship of native-born children of foreign parents. 2 Kent. Com. 39, 50, 53, 258, note; Lynch v. Clarke (1 Sandf. Ch. 583, 649); Ludlam v. Ludlam (26 N. Y. 356) [84 Am. Dec. 193]."

Regarding the phrase of the Fourteenth Amendment "subject to the jurisdiction thereof," the court say: "The real object of the Fourteenth Amendment of the Constitution in qualifying the words, 'all rjficsons born in the United States,' by the addition, 'and subject to the jurisdiction thereof,' would appear to have been to exclude, by the fewest and fittest words (besides children of members of the Indian tribes, standing in 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, and by our own law, from the time of the first settlement of the English colonies in America, had been recognized exceptions to the fundamental rule of citizenship by birth within the country."25

22 For comments on the "history of the times," and the debates in Congress as showing the intended meaning of the citizenship clause of the Amendment, see pages 697-699 of the opinion in the Wong Kim Ark Case. See also Van Dyne, Citizenship of the United States, chapter I.

23 19 How. 393; 15 L. ed. 691.

24 Citing The Slaughter House Cases, 16 Wall. 36; 21 L. ed. 394: Strauder V. West Virginia. 100 U. S. 303; 25 L. ed. 664; Ex parte Virginia. 100 U. S. 339; 25 L. ed. 676; Neal v. Delaware. 103 U. S. 370; 26 L. ed. 567; Elk v. Wilkins, 112 U. S. 94; 5 Sup. Ct. Rep. 41; 28 L. ed. 643.

25 Citing Calvin's Case. 7 Coke. 1186; Cockburn, Nationality, 7; Dicey, Confl. Laus, 177; Inglis v. Sailor's Snug Harbor, 3 Pet. 99; 7 L. ed. 017: 2 Kent, Com. 39.