[649] UNITED STATES v. WONG KIM ARK.
Statement of the Case.
UNITED STATES v. WONG KIM ARK.
APPEAL FROM THE DISTRICT COURT OF THE UNITED STATES FOR THE
NORTHERN DISTRICT OF CALIFORNIA.
No. 132. Argued March 5, 8, 1897.--Decided March 28, 1898.
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, but have a permanent
domicil 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 Fourteenth Amendment of the
Constitution, "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."
This was a writ of habeas corpus, issued October 2, 1895, by the District
Court of the Unite States for the Northern District of California, to the
collector of customs at the port of San Francisco, in behalf of Wong Kim Ark,
who alleged that he was a citizen of the United States, of more than
twenty-one years of age, and was born at San Francisco in 1873 of parents of
Chinese descent and subjects of the Emperor of China, but domiciled residents
at San Francisco; and that, on his return to the United States on the
steamship Coptic in August, 1895, from a temporary visit to China, he applied
to said collector of customs for permission to land, and was by the collector
refused such permission, and was restrained of his liberty by the collector,
and by the general manager of the steamship company acting under his
direction, in violation of the Constitution and laws of the United States, not
by the virtue of any judicial order or proceeding, but solely upon the
pretence that he was not a citizen of the United States.
At the hearing, the District Attorney of the United States was permitted to
intervene in behalf of the United States in opposition to the writ, and stated
the grounds of his intervention in writing as follows:
"That, as he is informed and believes, the said person in [650] whose behalf
said application was made is not entitled to land in the United States, or to
be or remain therein, as is alleged in said application, or otherwise.
"Because the said Wong Kim Ark, although born in the city and county of San
Francisco, State of California, United States of America, is not, under the
laws of the State of California and of the United States, a citizen thereof,
the mother and father of the said Wong Kim Ark being Chinese persons and
subjects of the Emperor of China, and the said Wong Kim Ark being also a
Chinese person and a subject of the Emperor of China.
"Because the said Wong Kim Ark has been at all times, by reason of his race,
language, color and dress, a Chinese person, and now is, and for some time
last past has been, a laborer by occupation.
"That the said Wong Kim Ark is not entitled to land in the United States, or
to be or remain therein, because he does not belong to any of the privileged
classes enumerated in any of the acts of Congress, known as the Chinese
Exclusion Acts,*1* which would exempt him from the class or classes which are
especially excluded from the United States by the provisions of the said
acts.
"Wherefore the said United States Attorney asks that a judgment and order of
this honorable court be made and entered in accordance with the allegations
herein contained, and that the said Wong Kim Ark be detained on board of said
vessel until released as provided by law, or otherwise to be returned to the
country from whence he came, and that such further order be made as to the
court may seem proper and legal in the premises."
The case was submitted to the decision of the court upon the following facts
agreed by the parties:
"That the said Wong Kim Ark was born in the year 1873, at No. 751 Sacramento
Street, in the city and county of San Francisco, State of California, United
States of America, and [651] that his mother and father were persons of
Chinese descent and subjects of the Emperor of China, and that said Wong Kim
Ark was and is a laborer.
"That at the time of his said birth his mother and father were domiciled
residents of the United States, and had established and enjoyed a permanent
domicil and residence therein at said city and county of San Francisco, State
aforesaid.
"That said mother and father of said Wong Kim Ark continued to reside and
remain in the United States until the year 1890, when they departed for China.
"That during all the time of their said residence in the United States as
domiciled residents therein the said mother and father of said Wong Kim Ark
were engaged in the prosecution of business, and were never engaged in any
diplomatic or official capacity under the Emperor of China.
"That ever since the birth of said Wong Kim Ark, at the time and place
hereinbefore stated and stipulated, he has had but one residence, to wit, a
residence in said State of California, in the United States of America, and
that he has never changed or lost said residence or gained or acquired another
residence, and there resided claiming to be a citizen of the United States.
"That in the year 1890 the said Wong Kim Ark departed for China upon a
temporary visit and with the intention of returning to the United States, and
did return thereto on July 26, 1890, on the steamship Gaelic, and was
permitted to enter the United States by the collector of customs upon the sole
ground that he was a native-born citizen of the United States.
"That after his said return the said Wong Kim Ark remained in the United
States, claiming to be a citizen thereof, until the year 1894, when he again
departed for China upon a temporary visit, and with the intention of returning
to the United States, and did return thereto in the month of August, 1895, and
applied to the collector of customs to be permitted to land; and that such
application was denied upon the sole ground that said Wong Kim Ark was not a
citizen of the United States.
[652] "That said Wong Kim Ark has not, either by himself or his parents
acting for him, ever renounced his allegiance to the United States, and that
he has never done or committed any act or thing to exclude him therefrom."
The court ordered Wong Kim Ark to be discharged, upon the ground that he was
a citizen of the United States. 71 Fed. Rep. 332. The United States appealed
to this court, and the appellee was admitted to bail pending the appeal.
Mr. Solicitor General Conrad, with whom was Mr. George D. Collins on the
brief, for appellants.
Mr. Maxwell Evarts and Mr. J. Hubley Ashton, for appellee. Mr. Thomas D.
Riordan filed a brief for the same.
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 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 residence therein
at San Francisco; they 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 wit, in
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 [653] therefrom. In 1890 (when he
must have been about seventeen years of age) he departed for China on a
temporary visit and with the intention of returning to the United States, and
did return thereto by sea in the same year, and was permitted by the collector
of customs to enter the United States, upon 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 twenty-one years of age, but whether a little above or a little
under 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
thereto 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, 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, but have a permanent domicil 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 Fourteenth Amended of the Constitution, "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."
I. In construing any act of legislation, whether a statute 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 to the history, [654] of the law
as 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
"citizen of the United States," and "natural-born citizen of the United
States." by the original Constitution, every representative in Congress is
required to have been "seven years a citizen of the United States," and every
Senator to have been "nine years a citizen of the United States;" and "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." The Fourteenth Article of Amendment, besides declaring that "all
persons born or naturalized in the United States, and subject to the
jurisdiction thereof, are citizens of the United States and to the State
wherein they reside," also declares that "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." And the Fifteenth Article of Amendment
declares that "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."
The Constitution nowhere defines the meaning of these words, either by way
of inclusion or of exclusion, except in so far as this is done by the
affirmative declaration that "all persons born or naturalized in the United
States, and subject to the jurisdiction thereof, are citizens of the United
States." In this, as in other respects, it must be interpreted in the light
of common law, the principles and history of which were familiarly known to
the framers of the Constitution. Minor v. Happersett, 21 Wall. 162; Ex parte
Wilson, 114 U.S. 417, 422; Boyd v. United States, 116 U.S. 616, 624, 625;
Smith v. Alabama, 124 U.S. 465. The language of the Constitution, as has been
well said, could not be understood without reference to the common law. 1 Ken
Com. 336; Bradley, J., in Moore v. United States, 91 U.S. 270, 274.
[655] In Minor v. Happersett, Chief Justice Waite, when constructing, in
behalf of the court, the very provision of the Fourteenth Amendment now in
question, said: "The Constitution does not, in words, say who shall be
natural-born citizens. Resort must be had elsewhere to ascertain that." and
he proceeded to resort to the common law as an aid in the construction of this
provision. 21 Wall. 167.
In Smith v. Alabama, Mr. Justice Matthews, delivering the judgment of the
court, said: "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 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 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 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." 124 U.S.
478.
II. The fundamental principle of the common law 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, et 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, born during and within
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 [656] explanations of
it, was clearly, though quaintly, stated in the leading case, known as
Calvin's Case, or the Case of the Postnati, decided in 1608, after a hearing
in the Exchequer Chamber before the Lord Chancellor and all the Judges of
England, and reported by Lord Coke and by Lord Ellesmere. Calvin's Case, 7
Rep. 1, 4b-61, 18a, 18b; Ellesmere on Postnati, 62-64; S.C., 2 Howell's State
Trials, 559, 607, 613-617, 639, 640, 659, 679.
The English authorities ever since are to the like effect. Co. Lit. 8a,
128b; Lord Hale, in Hargrave's Law Tracts, 210, and in 1 Hale P.C. 61, 62; 1
Bl. Com. 366, 369, 370, 374; 4 Bl. Com 74, 92; Lord Kenyon, in Doe v. Jones, 4
T. R. 300, 308; Cockburn on Nationality, 7; Dicey Conflict of laws, pp.
173-177, 741.
In Udny v. Udny, (1869) L. R. 1 H. L. Sc. 441, the point decided was one of
inheritance, depending upon the question whether the domicil of the father was
in England or in Scotland, he being in either alternative a British subject.
Lord Chancellor Hatherley said: "The question of naturalization and of
allegiance is distinct from that of domicil." p. 452. Lord Westbury, in the
passage relied on by the counsel for the United States, began by saying: "The
law of England, and of almost all civilized countries, ascribes to each
individual at his birth two 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, and which may be called 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." And then, while maintaining that the civil status is
universally governed by the single principle of domicil, domicilium, the
criterion established by the international law for the purpose of determining
civil status, and the basis on which "the personal rights of the party, that
is to say, the law which determines his majority or minority, his marriage,
succession, testacy or [657] intestacy, must depend;" he yet distinctly
recognized that a man's political status, his country, patria, and his
"nationality, that is, natural allegiance," "may depend on different laws in
different countries." pp. 457, 560. He 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: "By the common law of England, every person born within the dominions
of the Crown, no matter whether of English or of 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 ambassadors (who were excepted 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." 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 in italics: "`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, owes `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 tot he exceptions hereinafter 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 principle of English law on the subject of British nationality." The
exceptions afterwards mentioned by Mr. Dicey are only these two: "1. Any
person who (his father being an alien enemy) is born in a part of the British
dominions, which at the time of such [658] person's birth is in hostile
occupation, is an alien." "2. Any person whose father (being an alien) is at
the time of such person's 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) an alien." And he adds: "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 in substance depended on the place of a person's
birth, it 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." Dicey Conflict of Laws, pp.
173-177, 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 was a
natural-born subject, unless the child of an ambassador or other diplomatic
agent of a foreign State, or of an alien enemy in hostile occupation of the
place where the child was born.
III. The same rule 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, and continued to prevail under the Constitution 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: "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 [659] that character
otherwise than in such manner as may be prescribed by law, is a question which
it is not necessary at present to decide." 2 Cranch, 64, 119.
In Inglis v. Sailors' Snug harbor, (1830) 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: "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,
were natural-born British subjects." 3 Pet. 120. Mr. Justice Johnson said:
"He was entitled to inherit as a citizen born of the State of New York." 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 v. Jones, above
cited, and saying: "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, second, birth within the protection and obedience, or, in
other words, within the ligeance of the sovereign. That is, the party must be
born within a place where the sovereign is at the time in full possession and
exercise of his power, and the party must also at his birth derive protection
from, and consequently owe obedience or 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 is 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 are held to be [660] subjects of
the prince whom he represents, although born under the actual protection and
in the dominions of a foreign prince." 3 Pet. 155. "The children of enemies,
born in a place within the dominions of another sovereign, then occupied by
them by conquest, are still aliens." 3 Pet. 156. "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 thereto, are subjects by birth."
3 Pet. 164.
I Shanks v. Dupont, 3 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 in 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 in South Carolina, by
descent case before that treaty, was protected thereby. It was of such a
case, that Mr. Justice Story, delivering the opinion of the court, said: "The
incapacities of femes 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." 3 Pet. 248. This last sentence
was relied on by the counsel 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 the treaty, there was any principle of international
law which could defeat the operation of the established rule of citizenship by
the birth within the United States; for he referred (p. 245) to the
contemporaneous opinions in Inglis v. Sailors' Snug Harbor, [661] above cited,
in which this rule had been distinctly recognized, and in which he had said
(p. 162) that "each government had a right to decide for itself who should be
admitted or deemed citizens;" and in his Treatise on the Conflict of Laws,
published in 1834, he said that, in respect to residence in different
countries or sovereignties, "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," and
stated, as the first of those principles, "Persons who are born in a country
are generally deemed citizen and subjects of that country." Story Conflict of
Laws, Section 48.
The English statute of 11 & 12 Will. III, (1700) c. 6, entitled "An act to
enable His Majesty's natural-born subjects to inherit the estate of their
ancestors, either lineal or collateral, notwithstanding their father or mother
were aliens," enacted that "all and every person or persons, being the King's
natural-born subject or subjects, within any of the King's realms or
dominions," might and should thereafter lawfully inherit and make their titles
by descent to any lands "from any of their ancestors, lineal 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 the King's allegiance, and out
of His Majesty's realms and dominions," as fully and effectually, as if such
parents of ancestors "had been naturalized or natural-born subject or subjects
within the King's dominions." 7 Statutes of the Realm, 590. 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 it of course extended to the Colonies, and, not having
been repealed in Maryland, was in force there. In McCreery v. 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 [662] 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 "whether the statute applies to the case
of a living alien ancestor, so as to create a title by heirship, where none
would exist by the common law, if the ancestor were a natural-born subject."
9 Wheat. 356.
