free or not, were then acknowledged as a part of the people, nor intended to be included in the general words used in that memorable instrument, nor were they included nor intended to be included under the word "citizens" in the constitution, nor were they constituent members of the sovereignty, nor could they become members of the political community formed and brought into existence by the constitution of the United States, nor as such could they become entitled to the rights, privileges, and immunities guarantied by that instrument to the citizen, one of which was and is the privilege of suing in the courts of the United States in the cases specified in the constitution."+ In this state of the law, the fourteenth amendment to the constitution was adopted, the first clause of the first section of which declares that, all persons born or naturalized in the United States, and subject to the jurisdictiton thereof, are citizens of the United States and of the states wherein they reside," the main purpose of which was to confer citizenship upon the lately enfranchised slave population, 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 and of the states wherein they reside.95

§ 214. Two sources of citizenship.-There are two sources of citizenship, and two only: (1) Birth in the United States, subject to the jurisdiction thereof; and (2) naturalization under and pursuant to the constitution and laws of the United States. Citizenship by naturalization can only be acquired by naturalization under the authority and in the forms of law; but citizenship by birth is by the mere fact of birth under the circumstances defined in the fourteenth amendment to the constitution. Every person born in the United States, and

people may confer upon it such powers as they choose. The government, when so formed, may, and when called upon, should exercise all the powers it has for the protection of the rights of its citizens and the people within its jurisdiction; but it can exercise no other. The duty of a government to afford protection is limited always by the power it possesses for that purpose."

94 Dred Scott v. Sandford, 19 How. 393 (15:691).

95 United States v. Wong Kim Ark, 169 U. S. 649, 732 (42:890); The Slaughter-House Cases, 16 Wall. 36, 73 (21:394); Strauder v. West Virginia, 100 U. S. 303 (25: 664); Ex parte Virginia, 100 U. S. 339, 345 (25:676); Neal v. Delaware, 103 U. S. 370, 386 (26:567); Elk v. Wilkins, 112 U. S. 94, 101 (28:643).

subject to the jurisdiction thereof, becomes at once a citizen of the United States and of the state wherein he is born, and needs no naturalization. A person born out of the jurisdiction of the United States can only become a citizen by being naturalized, either by treaty, as in the case of the annexation of foreign territory; or by authority of congress, exercised either by declaring certain classes of persons to be citizens, as in the acts conferring citizenship upon foreign born children of citi zens, or by enabling foreigners individually to become citizens by proceedings in the judicial tribunals, as in the ordinary provisions of the naturalization acts.96

§ 215. Natural-born citizens-Not defined by the constitution-Resort had to the common law.-The constitution of the United States, as originally adopted, uses the words "citizen of the United States, "'97 and "natural-born citizen" 98 of the United States, and "citizen of the United States at the time of the adoption of this constitution," " but that instrument nowhere defines these words, either by way of inclusion or exclusion, except in so far as this is done by the affirmative declaration contained in the fourteenth amendment, that "all persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the states wherein they reside," and resort must be had to the common law to ascertain their meaning.1 The constitution was written in the language of the common law, whose principles and history were familiarly known to the framers of that instrument and the people of the states who adopted it; and in respect to the words "citizen," and "natural-born citizen," and "citizen of the United States at the time of the adoption of the constitution," as in other respects, that instrument must be interpreted in the light of the history and principles of the common law. Although there is no common law of the 99 U. S. Const. Art. II, sec. 1, cl. 4.

96 United States v. Wong Kim Ark, 169 U. S. 649, 732 (42:890); Minor v. Happersett, 21 Wall. 162 (22:627); Elk v. Wilkins, 112 U. S. 94, 123 (28:643).

97 U. S. Const. Art. I, sec. 2, cl. 2, sec. 3, cl. 3.

98 U. S. Const. Art. II, sec. 1, cl. 4.

1 Minor v. Happersett, 21 Wall. 162 (22:627); United States v. Wong Kim Ark, 169 U. S. 647 (42:890).

2 Minor v. Happersett, 21 Wall. 162 (22:627); United States v. Wong Kim Ark, 196 U. S. 647 (42: 890).

United States, in the sense of a national customary law, distinct from the common law of England as adopted by the several states each for itself, applied as its local law, and subject to such alteration as may be provided by its own constitution and statutes, yet there is one clear exception to this principle, namely; the interpretation of the constitution of the United States is 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 and principles.3

§ 216. Same-Common law rule.-By the common law of England, as it existed during the whole colonial period in this country, and the revolutionary period, and at the time of the adoption of the federal constitution, aliens, while residing in the dominions possessed by the crown of England, were within the allegiance, protection and jurisdiction of the English sovereign. and, therefore, every child born in England of alien parentage was a natural-born subject of England; except (1) the children of ambassadors or other diplomatic agents of foreign states. and (2) the children of alien enemies in hostile occupation of the place of birth at the time of birth. Subject to the two exceptions stated, any person who, whether of English or of foreign parentage, was born within the British dominions, was a natural-born British subject. By natural-born British subject was meant a British subject who had become such at the moment of his birth.*

3 Smith v. Alabama, 124 U. S. 465 (31:508); Moore v. United States, 91 U. S. 270, 274 (23:346); Ex parte Wilson, 114 U. S. 417 (29:89); Boyd v. United States, 116 U. S. 616, 624 (29:746); United States v, Wong Kim Ark, 196 U. S. 647 (42:890); Minor v. Happersett, 21 Wall. 162 (22:627).

4 United States v. Wong Kim Ark, 169 U. S. 649, 732 (42:890) and authorities cited. "The funda mental principle of the commonlaw with regard to English nationality, was birth within the allegiance, also called 'ligealty,' '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 subjectionem subjectio protectionem-and were not restricted to natural-born subjects and naturalized subjects, or to those who had taken an oath of allegiance; but. were predicable of aliens in 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,

§ 217. Same-Common law rule prevailed in American colonies and under original constitution-Slave population excepted. The common law rule upon the subject of citizenship by birth was in force in all the English colonies upon this continent down to the time of the Declaration of Independence, and in the United States afterwards under the articles of confederation, and continued to prevail under the constitution as originally adopted; with this qualification, however, that, prior to the adoption of the fourteenth amendment to the constitution, neither the negroes of the African race, who, at the time of the Declaration of Independence, had been imported into this country and sold and held as slaves, nor their descendants, whether they had become free or not, were embraced within the rule."

5

$218. Same-Same-The Indian tribes.-Neither the Indian tribes found on this continent by the English colonists, and who were here at the time of the Declaration of Independence, nor their descendants, whether within or without the limits of the United States, were within the common-law rule of citizenship by birth; they were no part of the people of the United States, nor were they citizens of the United States, nor could they become such citizens except by the consent and acceptance of the United States through treaties or naturalization laws."

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 descent as a source of nationality." Mr. Justice Gray in United States v. Wang Kim Ark, supra.

born during and within their bassadors (who were excepted 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. * Lord Chief Justice Cockburn, in the same year (1869), reviewing the whole matter, said: 'By the common law of England, every person born within the dominions of the crown, no matter whether of English or foreign parents, and, in the latter case, whether the parents were settled, or merely temporarily sojourning, in the country, was an English subject; save only the children of foreign am

5 United States v. Wong Kim Ark, 169 U. S. 649, 732 (42:890). 6 Dred Scott v. Sandford, 19 How. 393, 633 (15:69).

7 Elk v. Wilkins, 112 U. S. 94, 123 (28:643); Cherokee Nation v. Georgia, 5 Pet. 1; Worcester v. Georgia, 6 Pet. 515; United States v. Rogers, 4 How. 567; United States v. Holliday, 3 Wall. 407

"Under the constitution of the United States as originally established, Indians not taxed were excluded from the persons according to whose numbers representatives and direct taxes. were apportioned among the several states; and congress had and exercisd the power to regulate commerce with the Indian tribes, and the members thereof, whether within or without the boundaries of one of the states of the union. The Indian tribes, being within the territorial limits of the United States, were not, strictly speaking, foreign states; but they were alien nations, distinct political communities, with whom the United States might and habitually did deal, as they thought fit, either through treaties made by the President and senate, or through acts of congress in the ordinary forms of legislation. The members of those tribes owed immediate allegiance to their several tribes and were no part of the people of the United States. They were in a dependent condition, a state of pupilage, resembling that of a ward to his guardian. Indians and their property exempt from taxation by treaty or statute of the United States, could not be taxed by any state. General acts of congress did not apply to Indians, unless so expressed as to clearly manifest an intention to include them. The alien and dependent condition of the members of the Indian tribes could not be put off at their own will, without the action or assent of the United States. They were never deemed citizens of the United States, except under explicit provisions of treaty or statute to that effect, either declaring a certain tribe or such

(18:182); The Kansas Indians, 5 Wall. 737 (18:667); The New York Indians, 5 Wall. 761 (18:708); The Cherokee Tobacco, v. United States, 11 Wall, 616 (20: 227); United States v. Whiskey, 93 U. S. 188 (23:846); Pennock v. Comrs., 103 U. S. 44 (26:367); Crow Dog's Case, 109 U. S. 556 (27:1030); Goodell v. Jackson, 20 Johns. 693; Hastings v. Farmer, 4 N. Y. 293; Karrahoo v. Adams, 1 Dill. 344, 346; Gray v. Goffman, 3 Dill. 393; Hicks v. Butrick, 3 Dill. 413; U. S. Const. Art. I, secs. 2, 8, Art. II, sec. 2; 7 U. S. Stat. at L.

159, 211, 236, 335, 483, 488; Op. Atty. Gen. Taney, 2 Ops. Atty. Gen. 462; 10 U. S. Stat. at L. 1159; 12 U. S. Stat. at L. 1192; 14 U. S. Stat. at L. 763; 12 U. S. Stat. at L. 1237: 13 U. S. Stat. at L. 624; Acts of Congress of March 3, 1839, ch. 83, sec. 7, and of March 3, 1843, ch. 101, sec. 7, and of August 6, 1846, ch. 88, and of March 3, 1865, ch. 127, sec. 4; 5 U. S. Stat. at L. 351, 647; 9 U. S. Stat. at L. 55; 13 U. S. Stat. at L. 562; 9 U. S. Stat. at L. 955; 11 U. S. Stat. at L. 667; 7 Ops. Atty. Gen. 746.