This provision does not apply if the law of the wife's nationality provides to the contrary.

14. If the wife of a person who has acquired Japanese nationality did not herself acquire it according to the provisions of the preceding article, she may be naturalized even though the conditions specified in article 7 do not exist as to her.

15. A child of a person who acquires Japanese nationality acquires it together with his parent, if the child is a minor according to the law of his nationality.

This provision does not apply if the law of the child's nationality provides to the contrary.

16. A person naturalized, a person who as being the child of a naturalized person has acquired Japanese nationality, or a person who has become the adopted child of a Japanese or the husband of a Japanese women who is the head of the house has not the following rights:

(1) The right to become a minister of state, a minister of the Imperial Household, or keeper of the privy seal; (2) the right to become president, vice-president, or a member of the privy council; (3) the right to hold the position of court councillor; (4) the right to become an envoy extraordinary and a minister plenipotentiary; (5) the right to hold the position of a general or admiral; (6) the right to become president of the supreme court, of the board of accounts, or of the administrative litigation court; (7) the right to be elected as a member of the Imperial Diet.

17. The Minister of the Home Department, with the sanction of the Emperor, may except from the restrictions of the preceding article a person who has been naturalized under the provisions of article 11, after five years from the time when he acquired Japanese nationality, or any other person after ten years.

18. A Japanese woman who marries an alien loses thereby her nationality. 19. A person who by marriage or adoption has acquired Japanese nationality loses it on divorce or the dissolution of the adoption only in case he thereby acquires a foreign nationality.

20. A person who voluntarily acquires a foreign nationality loses thereby his Japanese nationality.

20-2. A Japanese who by reason of birth in a foreign country shall have acquired the nationality of that country and has a domicile therein may renounce his Japanese nationality with the permission of the Minister of the Home Department.

If a person who wishes to renounce his Japanese nationality is under fifteen years of age, the application for the permission as provided for in the preceding paragraph must be made by his legal representative, and if such person is a minor of fifteen years of age or more, or a person adjudged incompetent, the application must be made by him with the approval of his legal representative.

The application or the approval, made or given by a mother or a father-inlaw, or a natural mother, or a guardian, as provided for in the preceding paragraph, must be made or given with the approval of the family counsel.

A person who has renounced his nationality losses his Japanese nationality. 21. The wife or child of a person who losses his Japanese nationality loses Japanese nationality on acquiring the nationality of such person.

22. The provisions of the preceding paragraph do not apply to the wife or child of a person who loses his Japanese nationality by divorce or the dissolution of adoption, unless the wife in case of dissolution of adoption of her husband does not procure a divorce or the child quits the house, following his father.

23. If a child who is a Japanese subject acquires by acknowledgment a foreign nationality, he loses his Japanese nationality, but this does not apply to a person who has become the wife of a Japanese subject, the husband of a Japanese woman being the head of the house, or the adopted child of a Japanese subject.

24. Notwithstanding the provisions of the proceeding six articles, a male person of the age of seventeen years or more loses his Japanese nationality only if he has already performed his service in the army or navy or is not bound to perform such service.

A person who hold civil or military position can lose his Japanese nationality only after he ceases to hold his position.

25. A person who has lost Japanese nationality by marriage, but after the dissolution of such marriage has domiciled in Japan, may, by the permission of the Minister of the Home Department, recover Japanese nationality.

26. If a person who has lost Japanese nationality according to the provisions of articles 20, 20-2, or 21 has a domicile in Japan, he may, with the permission of the Minister of the Home Department, recover Japanese nationality, but this does not apply to a person mentioned in article 16 who has lost Japanese nationality.

If the person who has lost his Japanese nationality under the provision of Article 20-2 is a minor under fifteen years of age, the application for the permission in the preceding paragraph must be made by his father who lives in the house to which the child belonged at the time of his renunciation of his Japanese nationality; if the father is unable to do this, the application must be made by his mother; if the mother is unable, by his grandfather, or if the grandfather is unable, by his grandmother.

27. The provisions of articles 13 to 15 apply correspondingly to the cases mentioned in the preceding two articles.

SUPPLEMENTARY PROVISION

28. This Law shall be put into force on and after the first of April, 1899.

2]

DRAFT OF LAW AMENDING THE LAW OF NATIONALITY

The Law of Nationality shall be amended as follows:

ARTICLE 20, paragraph 2: A Japanese born in a country, to be specified by Imperial Decree, and acquiring the nationality of that country by reason of birth, who shall not have indicated his desire to preserve his Japanese nationality in conformity with a procedure to be set forth by ordinance, shall have lost his Japanese nationality at the time of his birth.

Those preserving their Japanese nationality in conformity with the procedure referred to in the preceding clause, or those Japanese who have acquired the nationality of any country which may be specified, by reason of birth in that country, prior to the date on which the said procedure is published, and who shall be domiciled in such country, may divest themselves of Japanese nationality at will.

Those who have divested themselves of their Japanese nationality in accordance with the provisions of the preceding clause, shall lose their Japanese nationality.

Paragraph 3. Japanese who have acquired the nationality of any country other than those referred to in the preceding paragraph, by reason of birth in such a country, and who shall be domiciled in such country, may divest themselves of Japanese nationality with the consent of the Minister of the Interior. The provisions of clause 3 of the preceding paragraph shall be applicable mutatis mutandis to those who have divested themselves of Japanese nationality in accordance with the provisions of the preceding clauses.

3] SUBSTANCE OF A LAW AMENDING THE LAW OF NATIONALITY

The Law of Nationality is hereby amended to read as follows: ARTICLE XX-2. A Japanese who by reason of birth in a foreign country to be designated by Imperial Ordinance shall have acquired the nationality of that foreign country shall lose Japanese nationality from the time of birth, unless he declares intention to retain Japanese nationality in accordance with the provisions of an ordinance to be enacted in relation hereto.

A Japanese who has retained Japanese nationality as provided for in the preceding paragraph, or, who by reason of birth in a foreign country prior to the designation of such country as provided for in the preceding paragraph shall have acquired nationality of that foreign country, may relinquish Japanese nationality at will, provided that he retains the nationality of such foreign country and has a domicile therein.

A person relinquishing Japanese nationality under the preceding paragraph loses Japanese nationality.

ARTICLE XX-3. A Japanese who, by reason of birth in a foreign country other than that to be designated by Imperial Ordinance, shall have acquired the nationality of that foreign country and who has a domicile therein, may relinquish Japanese nationality with the permission of the Minister of Home Affairs.

The provisions of paragraph 3 of the preceding article shall be applied to a person who has relinquished nationality under the preceding paragraph.

NOTE. Under this Article, it is further provided that the following prohibitive article shall not be applied to a person who relinquishes Japanese nationality under Article XX-2 and XX-3:

ARTICLE XXXIV. Notwithstanding the provisions of the preceding six Articles, no male person of 17 years or more may relinquish Japanese nationality unless he has already performed his service in the Army or Navy or is not required to perform such service.

Supplementary Rule. This Law shall take effect at a time to be provided for by Imperial Ordinance.

APPENDIX D

LEADING CASES DECIDED BY THE COURTS IN RELATION TO PERSONS INELIGIBLE TO CITIZENSHIP

1. TAKAO Ozawa v. UNITED STATES

Certificate from the Circuit Court of Appeals for the Ninth Circuit. Argued October 3 and 4, 1922. Decided November 13, 1922.

Mr. Justice Sutherland delivered the opinion of the Court.

The appellant is a person of the Japanese race born in Japan. He applied, on October 16, 1914, to the United States district court for the territory of Hawaii to be admitted as a citizen of the United States. His petition was opposed by the United States District Attorney for the District of Hawaii. Including the period of his residence in Hawaii, appellant had continuously resided in the United States for twenty years. He was a graduate of the Berkeley, California, High School, had been nearly three years a student in the University of California, had educated his children in American schools, his family had attended American churches, and he had maintained the use of the English language in his home. That he was well qualified by character and education for citizenship is conceded.

The District Court of Hawaii, however, held that, having been born in Japan, and being of the Japanese race, he was not eligible to naturalization under Section 2169 of the Revised Statutes, and denied the petition. Thereupon the appellant brought the cause to the Circuit Court of Appeals for the Ninth Circuit and that court has certified the following questions, upon which it desires to be instructed:

1. Is the Act of June 29, 1906 (34 Stat. at Large, Part I, Page 596) providing "for a uniform rule for the naturalization of aliens " complete in itself, or is it limited by Section 2169 of the Revised Statutes of the United States?

2. Is one who is of the Japanese race and born in Japan eligible to citizenship under the naturalization laws?

3. If said Act of June 29, 1906, is limited by said Section 2169 and naturalization is limited to aliens being free white persons and to aliens of African nativity and to persons of African descent is one of the Japanese race, born in Japan, under any circumstances eligible to naturalization?

These questions for the purposes of discussion may be briefly restated:

1. Is the Naturalization Act of June 29, 1906, limited by the provisions of Section 2169 of the Revised Statutes of the United States? 2. If so limited, is the appellant eligible to naturalize under that section?

First. Section 2169 is found in Title XXX of the Revised Statutes under the heading "Naturalization," and reads as follows:

The provisions of this title shall apply to aliens being free white persons and to aliens of African nativity and to persons of African descent.

The Act of June 29, 1906, entitled "An Act to establish a Bureau of Immigration and Naturalization, and to provide for a uniform

rule for the naturalization of aliens throughout the United States," consists of 31 sections, and deals primarily with the subject of procedure. There is nothing in the circumstances leading up to or accompanying the passage of the act which suggests that any modification of Section 2169, or of its application, was contemplated.

The report of the House Committee on Immigration and Naturalization, recommending its passage, contains this statement:

It is of the opinion of your committee that the frauds and crimes which have been committed in regard to naturalization have resulted more from the lack of any uniform system of procedure in such matters than from any radical defeat in the fundamental principles of existing law governing in such cases. The two changes which the committee has recommended in the principal controlling in naturalization matters, and which are embodied in the bill submitted herewith are as follows: First. The requirement that before an alien can be naturalized, he must be able to write either in his own language or in the English language and read, speak and understand the English language: and, Second, That the alien must intend to reside permanently in the United States before he shall be entitled to naturalize. House Report No. 1789, 59th Congress, 1st Sess., p. 3.

This seems to make it quite clear that no change of the fundamental character here involved was in mind.

Section 26 of the Act expressly repeals Sections 2165, 2167, 2168, and 2173 of Title XXX, the subject matter thereof being covered by new provisions. The sections of Title XXX remaining without repeal are Sections 2166, relating to honorably discharged soldiers; Section 2169 now under consideration; Section 2170 requiring five years residence prior to admission; Section 2171, forbidding the admission of alien enemies; Section 2172, relating to the status of children of naturalized persons, and Section 2174, making special provision in respect of the naturalization of seamen.

There is nothing in Section 2169 which is repugnant to anything in the Act of 1906. Both may stand and be given effect. It is clear, therefore, that there is no repeal by implication.

But it is insisted by appellant that Section 2169 by its terms is made applicable only to the provisions of Title XXX, and that it will not admit of being construed as a restriction upon the Act of 1906. Since Section 2169, it is in effect argued, declares that "the provisions of this title shall apply to aliens, being free white persons it should be confined to the classes provided for in the unrepealed sections of that title, leaving the Act of 1906 to govern in respect of all other aliens, without any restriction except such as may be imposed by that act itself.

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It is contended that thus construed the Act of 1906 confers the privilege of naturalization without limitation as to race, since the general introductory words of Section 4 are: "That an alien may be admitted to become a citizen of the United States in the following manner and not otherwise." But, obviously, this clause does not relate to the subject of eligibility, but to the "manner that is the procedure, to be followed. Exactly the same words are used to introduce the similar provisions contained in Section 2165 of the Revised Statutes. In 1790 the first Naturalization Act provides that "Any alien, being a free white person, * * may be admitted to become a

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citizen, * *" C. 3, I. Stat. 103. This was subsequently enlarged to include aliens of African nativity and persons of African descent. These provisions were restated in the Revised Statutes, so that Section 2165 included only the procedural portion, while the substantive parts were carried into a separate section (2169) and the words "An alien" substituted for the words "Any alien."

In all of the Naturalization Act from 1790 to 1906, the privilege of naturalization was confined to white persons (with the addition in 1870 of those of African nativity and descent) although the exact wording of the various statutes was not always the same. If Congress in 1906 desired to alter a rule so well and so long established, it may be assumed that its purpose would have been definitely disclosed and its legislation to that end put in unmistakable terms.