The Appellants who argued that Wong Kim Ark was not a citizen of the United States because Congress made a law excluding the Chinese, and Ark was born in the United States, a child of Chinese subjects, cited Francis Wharton’s Conflict of Laws in their Appellants’ Brief to the US Supreme Court.
By the fourteenth amendment to the Constitution of the United States it is provided 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.” If a child is born in the United States of French parents temporarily resident but not domiciled in the place of birth, is such a child a citizen of the United States by force of the amendment just stated? This depends on the question of whether the child at its birth is “subject to the jurisdiction of the United States.”
In one sense it undoubtedly is. All foreigners are bound to a local allegiance to the State in which the sojourn. Yet the term “subject to the jurisdiction,” as above used, must be construed in the sense in which the term is used in international law as accepted in the United States as well as in Europe. And by this law the children born abroad of American citizens are regarded as citizens of the United States, with the right on reaching full age to elect one allegiance and repudiate the other, such election being final. The same conditions apply to children born of foreigners in the United States.
The Appellants lost the case. In 1905 George H. Parmele published the third edition of Conflict of Laws (1905) and in the preface, wrote about the purpose of the edition:
The controlling purpose in the preparation of the present edition of this work has been to present the American and English decisions upon specific questions relating to conflict of laws, or involving the application of principles of private international law, and to formulate from these decisions the concrete principles and rules applicable to such questions, rather than to trace general principles and theories though unrelated subjects. The great number of decisions rendered since the publication of the second edition has made this mode of treatment practicable.
In particular, the Wong Appellants’ citation has been updated with the following new information, based on the decision in Wong itself:
Upon the other hand it is now settled by a decision of the United States Supreme Court [footnote references United States v. Wong Kim Ark] that the amendment, interpreted in the light of the common law, extends citizenship to a person born in the United States of foreign parents who have not been, or cannot be, naturalized in the United States, but who have a permanent domicil or residence therein; and that it is beyond the power of Congress to deny citizenship to such a person. It was said in this connection: The 14th Amendment affirms the ancient and fundamental rule of citizenship by birth within the territory, and in the allegiance and under the protection of the country, including all children born of resident aliens, with the exceptions or qualifications (as old as the rule itself) of children of foreign sovereigns or their ministers, or born on foreign public ships, or of enemies within and during a hostile occupation of part of our territory, and with the single additional exception of children of members of the Indian tribes owing direct allegiance to their several tribes.”