was called to the following passages in the opinion of Mr. Justice Brown:

Upon the other hand, the fourteenth amendment, upon the subject of citizenship, declares only 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 State wherein they reside." Here there is a limitation to persons born or naturalized in the United States which is not extended to persons born in any place "subject to their jurisdiction" (p. 251).

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If such

We are also of opinion that the power to acquire territory by treaty implies not only the power to govern such territory, but to prescribe upon what terms the United States will receive its inhabitants, and what their status shall be in what Chief Justice Marshall termed the "American Empire." There seems to be no middle ground between this position and the doctrine that if their inhabitants do not become, immediately upon annexation, citizens of the United States, their children thereafter born, whether savages or civilized, are such, and entitled to all the rights, privileges, and immunities of citizens. be their status, the consequences will be extremely serious. Indeed, it is doubtful if Congress would ever assent to the annexation of territory upon the condition that its inhabitants, however foreign they may be to our habits, traditions, and modes of life, shall become at once citizens of the United States. In all its treaties hitherto the treaty-making power has made special provision for this subject; in the cases of Louisiana and Florida, by stipulating that "the inhabitants shall be incorporated into the Union of the United States and admitted as soon as possible to the enjoyment of all the rights, advantages and immunities of citizens of the United States"; in the case of Mexico, that they should "be incorporated into the Union, and be admitted at the proper time (to be judged of by the Congress of the United States), to the enjoyment of all the rights of cititzens of the United States"; in the case of Alaska, that the inhabitants who remained 3 years, "with the exception of uncivilized native tribes, shall be admitted to the enjoyment of all the rights," etc.; and in the case of Porto Rico and the Philippines, "that the civil rights and political status of the native inhabitants shall be determined by Congress." In all these cases there is an implied denial of the right of the inhabitants to American citizenship until Congress by further action shall signify its assent thereto (pp. 279-280). It is obvious that in the annexation of outlying and distant possessions grave questions will arise from differences of race, habits, laws, and customs of the people, and from differences of soil, climate, and production, which may require action on the part of Congress that would be quite unnecessary in the annexation of contiguous territory inhabited only by people of the same race or by scattered bodies of native Indians.

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*

*

We suggest, without intending to decide, that there may be a distinction between certain natural rights, enforced in the Constitution by prohibitions against interference with them, and what may be termed "artificial" or "remedial" rights, which are peculiar to our own system of jurisprudence. Of the former class are the rights to one's own religious opinion and to a public expression of them, or, as sometimes said, to worship God according to the dictates of one's own conscience; the right to personal liberty and individual property; to freedom of speech and of the press; to free access to courts of justice, to due process of law, and to an equal protection of the laws; to immunities from unreasonable searches and seizures, as well as cruel and unusual punishments; and to such other immunities as are indispensable to a free government. Of the latter class are the rights to citizenship, to suffrage, Minor v. Happersett, 21 Wall. 162, and to the particular methods of procedure pointed out in the Constitution,

which are peculiar to Anglo-Saxon jurisprudence, and sc which have already been held by the States to be unnecessar the proper protection of individuals *** (pp. 282-2834.

We are therefore of opinion that the Island of Porto Ric territory appurtenant and belonging to the United State not a part of the United States within the revenue clauses Constitution; that the Foraker Act is constitutional, so far imposes duties upon imports from such island, and that plaintiff cannot recover back the duties exacted in this (p. 287).

Attention was also called to the following passag the opinion of Mr. Justice Day in Dorr v. United & (1903, 195 U. S. 143), in which it was held that Philippine Islands had never been incorporated the United States proper, so that a person accused crime in the Philippine Islands would not have a ri to demand a trial by jury under the provision of an cle III, section 2, of the Constitution:

If the treaty-making power could incorporate territory L the United States without Congressional action, it is appar that the treaty with Spain, ceding the Philippines to the Un States, carefully refrained from so doing; for it is expressly¦ vided that (art. IX) "the civil rights and political status of native inhabitants of the territories hereby ceded to the U States shall be determined by the Congress." In this langu it is clear that it was the intention of the framers of the tre to reserve to Congress, so far as it could be constitutionally de a free hand in dealing with these newly acquired possessions The legislation upon the subject shows that not only has C gress hitherto refrained from incorporating the Philippines í the United States but in the act of 1902, providing for tempor civil government, 32 Stat. 691, there is express provision t section 1891 of the Revised Statutes of 1878 shall not apply the Philippine Islands. This is the section giving force and eff to the Constitution and laws of the United States, not loca inapplicable, within all the organized territories, and every t ritory thereafter organized, as elsewhere within the Unit States.

In the submission of the above question to the S licitor, it was observed that, while the statements i the opinions just mentioned might be regarded dicta, insofar as they related to citizenship, they wer entitled to more weight than ordinary dicta, becaus of the fact that the conclusion of the court that Puert Rico and the Philippines had not been incorporated into the United States was based largely upon the fact that the great body of the inhabitants of these island had not been admitted to citizenship of the United States.

In a memorandum of April 3, 1912, prepared by Mr. Frederick Van Dyne, Assistant Solicitor and au thor of two outstanding books on citizenship, and approved by the Solicitor, Mr. J. R. Clark, it was held that the children in question were neither citizens of the United States nor citizens of the Philippine Islands owing allegiance to the United States and therefore could not be furnished with passports of this Government. This opinion reads as follows:

First, as the Philippine Islands have not been incorporated in the United States, and the provisions of the Constitution

I laws of the United States in regard to citizenship have been extended to the Philippines, the applicants are not zens of the United States, and passports cannot be issued them as citizens.

second, the applicants are not citizens of the Philippine Isds within the meaning of the act of July 1, 1902, and, of irse, are not entitled to passports or to the protection of the ited States, as such.

Section 4 of the act of 1902 has been amended by the act March 23, 1912, by the addition of a proviso which authors the Philippine Legislature "to provide by law for the quisition of Philippine citizenship by those natives of the ilippine Islands who do not come within the foregoing provions (sec. 4, act of July 1, 1902), the natives of other insular ssessions of the United States, and such other persons residg in the Philippine Islands who could become citizens of the nited States under the laws of the United States if residing erein."

It is true that the Supreme Court of the Philippine slands seems to have held in two cases (Haw v. Colector of Customs, 1934, No. 40895, Official Gazette, vol. 2, No. 68, p. 1310, and Go Julian v. Government of the Philippine Islands, 45 Phil. 289) that birth in the Philppine Islands since the date of their annexation to the United States conferred Philippine citizenship. The reasoning of the decisions, however, is hard to follow, especially in view of the fact that the Court seems to have relied largely upon certain previous decisions (United States v. Go Siaco, 12 Phil. 490; Munoz v. Collector of Customs, 20 Phil. 495; United States v. Lim Bim, 36 Phil. 924; and United States v. Ong Tianse, 29 Phil. 332), all of which related to persons who were born in the Philippine Islands before their annexation. It is obvious that the cases last mentioned could have no bearing upon the problem. Moreover, certain passages in the decisions concerning the two cases mentioned of le persons born in the Islands subsequent to their annexation by the United States contained statements indicating a confusion of American law with the Spanish law concerning nationality which was in effect prior to the transfer of the sovereignty of the Islands. Particular reference is made to the statement of Mr. Justice Villa

Union, it is reasonable to suppose that it would have done so by the plain declaration and would not have left it to mere inference. Before the question became acute at the close of the Spanish War the distinction between acquisition and incorporation was not regarded as important, or at least it was not fully understood and had not aroused great controversy. Before that the purpose of Congress might well be a matter of mere inference from various legislative acts; but in these latter days incorporation is not to be assumed without express declaration or an implication so strong as to exclude any other view.

It may be added that in its legislation Congress seems to have assumed that nationality of the United States was not acquired through the mere fact of birth in the outlying, unincorporated territories, although nationality, with or without citizenship of the United States, may be conferred in such cases by special legislation. Thus, in an act of June 27, 1934 (48 U. S. Stat. at L., pt. 1, p. 1245), Congress amended the act of March 2, 1917, "An act to provide a civil Government for Puerto Rico, and for other purposes," by adding a provision reading in part as follows:

SEC. 5b. All persons born in Puerto Rico on or after April 11, 1899 (whether before or after the effective date of this act), and not citizens, subjects, or nationals of any foreign power, are hereby declared to be citizens of the United States.

It will be observed that the above provision does not include persons born in Puerto Rico, subsequent to its annexation, of alien parents, if such persons acquired at birth the nationality of their parents under the laws of the countries of which their parents are nationals.

(f) A child of unknown parentage found in the United States, until shown not to have been born in the United States;

According to this provision a foundling who is first discovered in the United States is, in effect, presumed to have been born therein. But, if proof is produced that such a child was born outside the United States, his title to citizenship of the United States jure soli is lost. Provisions similar to this are found in the nation

Islands (supra, p. 291) that "the petitioner by reason of having been born in the Philippines had at least a latent right to Philippine citizenship." Apparently he had in mind the provisions of articles 17-19 of the Spanish civil code, which was in effect in the Philippines while the Islands were under Spanish dominion. Those provisions could hardly govern the citizenship of persons subsequently born in the Islands.

Attention may also be called to the following passage in the opinion of Chief Justice Taft in Balzac v. Porto Rico (1921, 258 U. S. 298, 306), in which it was held that the provision in the sixth amendment to the Constitution concerning trial by jury was not applicable to Porto Rico:

Had Congress intended to take the important step of changing the treaty status of Porto Rico by incorporating it into the

son, Nationality Laws, Analytical Index, p. 740). Such provisions seem humane and reasonable, and little argument in their support appears necessary.

(g) A person born outside the United States and its outlying possessions of parents one of whom is a citizen of the United States who has had ten years' residence in the United States or one of its outlying possessions, the other being an alien: Provided, That, in order to retain such citizenship, the child must reside in the United States or its outlying possessions for a period or periods totaling five years between the ages of thirteen and twenty-one years, and must within six months after his twenty-first birthday take an oath of allegiance to the United States: Provided further, That, if the child has

not taken up a residence in the United States or its outlying possessions by the time he reaches the age of sixteen years, or if he resides abroad for such a time that it becomes impossible for him to complete the five years' residence in the United States or its outlying possessions before reaching the age of twenty-one years, his American citizenship shall thereupon

cease.

The preceding provisos shall not apply to a child born abroad whose American parent is at the time of the child's birth residing abroad solely or principally to represent the Government of the United States or a bona fide American educational, scientific, philanthropic, religious, commercial, or financial organization, having its principal office or place of business in the United States, or an international agency of an official character in which the United States participates, for which he receives a substantial compensation.

This subsection is based upon section 1993 of the Revised Statutes, as amended by section 1 of the act of May 24, 1934 (48 Stat. pt. 1, 797). However, it embodies a modification of the provision last mentioned to make it better adapted to existing situations. On the one hand, it does not seem reasonable to confer citizenship at birth upon a foreign-born child having only one citizen parent unless the latter has resided in the United States before the child's birth at least 10 years. A foreign-born child whose citizen parent has not resided in this country as much as 10 years altogether is likely to be more alien than American in character. On the other hand, it seems desirable that the requirements in the first proviso to the effect that the foreignborn child, in order to retain citizenship, must reside in the United States 5 years between the ages of 13 and 21 years and take an oath of allegiance to the United States within 6 months after his twenty-first birthday should not be applied to one whose citizen parent resides abroad to represent the Government of the United States, an American organization belonging to one of the categories specified in the second proviso, or an international agency of an official character in which the United States participates. In general, citizens of the United States residing abroad for the purposes just mentioned not only promote the interests of this country but are likely to retain their American sympathies and character. Therefore, such persons are likely, as a rule, to bring up their children as Americans, to see that they speak the English language, and to have them imbued with American ideals. The probabilities, however, would seem to be otherwise where the citizen parent who is married to an alien resides abroad for reasons having no connection with the promotion of American interests.

(h) The foregoing provisions of subse (g) concerning retention of citizenship apply to a child born abroad subsequent to 24, 1934.

This subsection does not require extensive con As 13 years have not yet elapsed since the pass the act of May 24, 1934, the requirements con therein for retention of citizenship have not yet. into effect, and they will not become effective until 24, 1947. Such provisions are to be supplanted b corresponding provisions in subsection (g).

Sec. 202. All persons born in Puerto Rico on or af April 11, 1899, subject to the jurisdiction of United States, residing on the effective date this Act in Puerto Rico or other territory o which the United States exercises rights of s ereignty and not citizens of the United Sta under any other Act, are hereby declared to citizens of the United States.

This section is designed to do what is believed have been intended by those who sponsored the! which became the existing law concerning national in Puerto Rico, that is, the act of Congress of June: 1934. The latter does not apply the jus soli to pers born in Puerto Rico, since it expressly excepts childr born in the island of parents who are citizens or su jects of a foreign state. The proposed new provis will remedy this. In other words, this section will effect apply the rule of jus soli to Puerto Rico as the date of its annexation to the United States, treati Puerto Rico for such purpose as an incorporated ter tory of the United States. It places Puerto Rico a par with the Virgin Islands with regard to the effe of birth therein since its annexation to the Unite States.

Sec. 203. Unless otherwise provided in section 201 the following shall be nationals, but not citizens of the United States at birth:

(a) A person born in an outlying possession of the United States of parents one of whom is a national, but not a citizen, of the United States;

It should be borne in mind that the proposed code is prospective and is not intended as declaratory of the status of persons born before its effective date. It may be well at this point, however, to consider briefly the existing laws relating to nationality in the outlying possessions, and in this connection attention is called to the annexed collection of the treaties to which the United States is a party and statutes of the United States governing nationality of the United States at the present time (appendix No. 3).

As to the Philippine Islands, Puerto Rico, and the Virgin Islands, it will be observed that there are treaty

As to Guam, the nationality of its inhabitants is subect to the provision of article IX of the treaty of December 10, 1898, between the United States and Spa in, but Congress has not yet defined "the civil rights nd political status of the native inhabitants" of Guam Is it did in the cases of the inhabitants of the Philippine slands and Puerto Rico.

There are neither treaty nor statutory provisions governing the nationality of the inhabitants of Amercan Samoa; that is, "the Island of Tutuila and all other slands of the Samoan group east of longitude 171° vest of Greenwich"; although in article II of the treaty igned December 2, 1899, between the United States, Germany, and Great Britain, the latter powers renounced in favor of the United States all their rights over these islands (2 Malloy, Treaties, Conventions, tc., p. 1596; 1 Moore, International Law, p. 52–54). Mention may also be made of the joint resolution of Congress, approved February 20, 1929 (45 Stat. 1253), accepting, ratifying, and confirming the agreement of 'certain chiefs of the islands of Tutuila and Manua and certain other islands of the Samoan group," which are described, "to cede absolutely and without reserve to the United States of America all rights of sovereignty of whatsoever kind in and over these islands of the Samoan group by their acts dated April 10, 1900, and July 16, 1904."

The "joint resolution extending the sovereignty of the United States over Swain's Island and making the sland a part of American Samoa," dated March 4, 1895, is further proof that the Samoan Islands referred to are completely under the sovereignty of the United States.

Again, there are neither treaty nor statutory provisions defining the status of the inhabitants of the Panama Canal Zone. The convention between the United States and Panama signed November 18, 1903, y which "the Republic of Panama grants to the United States in perpetuity" its rights in the Canal Zone (2❘ Malloy, op. cit., 1349), does not define the nationality status of inhabitants thereof. However, the treaty provision just mentioned is deemed to have transferred the Sovereignty over the Canal Zone to the United States. In Wilson v. Shaw (204 U. S. 24), Mr. Justice Brewer aid:

It is hypercritical to contend that the title of the United States is imperfect, and that the territory described does not belong to the Nation, because of the omission of some of the echnical terms used in conveyances of real estate (p. 33).

Attention is also called to the opinion of Attorney General Bonaparte of September 7, 1907 (26 Op. Atty. Gen., 376), holding that one Henrique S. Ruata, a ative of the Canal Zone, who was a citizen of Panama and a resident of the Canal Zone at the time of its

legiance to the United States. The Attorney General based this opinion upon the rule of international law concerning the transfer of the nationality of inhabitants of territory ceded by one sovereign state to another, and cited as authority Hall's International Law, fourth edition, page 594. His opinion concluded as follows:

In my opinion, therefore, the United States has acquired the right to the allegiance of Mr. Ruata, and he has acquired the corresponding right to be protected by them and to the means of obtaining their protection, including passports (p. 378).

It may be added that the Panama Canal Zone is treated as an "organized territory of the United States insofar as the interstate rendition of criminals is concerned (act of August 24, 1912, ch. 390, § 12, 37 Stat. 569, U. S. C., title 48, 1330). The entry of aliens into the Canal Zone is governed by Executive Order No. 4314 of September 25, 1925, issued under authority of section 10, act of August 21, 1916 (39 Stat. 529).

In determining the status of the inhabitants of outlying possessions of the United States in cases in which it is not defined by treaty or statutory provisions, the Department of State has been obliged to resort to the rule of international law referred to in the opinion of Attorney General Bonaparte just mentioned. Moreover, the Department has assumed that children born in such outlying possessions to parents who became American nationals through the annexation, themselves acquired at birth American nationality, but not citizenship of the United States.

With reference to the collective naturalization of the inhabitants of annexed territory who previously had the nationality of the predecessor state, see American Insurance Company v. Canter, 1828, 1 Pet. 511, 542; Shanks v. Dupont, 1830, 3 Pet. 242; McIlvaine v. Coxe's Lessee, 1808, 4 Cr. 209; Minor v. Happersett, 1874, 21 Wall. 162; Boyd v. Thayer, 1892, 143 U. S. 135; Masson v. Mexico, 3 Moore, International Arbitrations, pp. 2542-2543; Halleck, International Law, 1st ed., p. 816; Wheaton, International Law, Dana's Note No. 169; Westlake, International Law, I, p. 71; Fauchille, Traíté de Droit International Public, I, p. 856; 3 Moore, Digest of International Law, pp. 311-327; Van Dyne, Naturalization, pp. 266-332; Opinion of Attorney General Griggs, January 16, 1901, 23 Op. Atty. Gen. 345. See also Research in International Law, Harvard Law School, 1929, Codification of International Law, Nationality, pp. 60–69.

The Department of State has held in a number of cases of persons desiring recognition as American nationals that a person born in the Canal Zone of alien parents subsequent to the treaty with Panama, did not acquire the status of an American national.