So, therefore, if persons born or naturalized in the United States have removed from the country and renounced, in any of the ordinary modes of renunciation, their citizenship, they thenceforth cease to be subject to the jurisdiction of the United States.*

With this explanation of the meaning of the words in the fourteenth amendment, "subject to the jurisdiction thereof," it is evident that they do not exclude the petitioner from being a citizen. He is not within any of the classes of persons excepted from citizenship; and the jurisdiction of the United States over him at the time of his birth was exclusive of that of any other country.

The clause as to citizenship was inserted in the amendment, not merely as an authoritative declaration of the generally recognized law of the country so far as the white race is concerned, but also to overrule the doctrine of the Dred Scott case, affirming that persons of the African race brought to this country and sold as slaves, and their descendants, were not citizens of the United States nor capable of becoming such. The clause changed the entire status of these people. It lifted them from their condition of mere freedmen and conferred upon them, equally with all other native-born, the rights of citizenship. When it was adopted, the naturalization laws of the United States excluded colored persons from becoming citizens, and the freedmen and their descendants, not being aliens, were without the purview of those laws. So the inability of persons to become citizens under those laws in no respect impairs the effect of their birth, or of the birth of their children, upon the status of either as citizens under the amendment in question.

the authority of any foreign government, it shall be the duty of the president forthwith to demand of that government the reasons for such imprisonment, and if it appears to be wrongful and in violation of the rights of American citizenship, the president shall forthwith demand the release of such citizen, and if the release so demanded is unreasonably delayed or refused, it shall be the duty of the president to use such means, not amounting to acts of war, as he may think necessary and proper to obtain or effectuate such release, and all the facts or proceedings relative thereto shall, as soon as practicable, be communicated by the president to

congress.

Approved July 27, 1868.

The provisions of this statute are re-enacted in the revised statutes in sections 1,999, 2,000 and 2,001.

*Many other cases might be mentioned where persons would not be citizens though born in the country. Thus, as Kent says: "If a portion of the country be taken and held by conquest in war, the conquerer acquires the rights of the conquered as to its dominion and government, and children born in the armies of a state while abroad and occupying a foreign country, are deemed to be born in the allegiance of the sovereign to whom the army belongs:" 2 Comm., 42. By allegiance, as thus used, is meant the duty of obedience to the government or sovereign under which the children live, for the protection they receive. But, while they are in their infancy, they cannot, of course, perform that duty, and its performance must necessarily be respited until they arrive at the years of discretion and responsibility. They then owe obedience, not only for the protection then enjoyed, but, as observed by Judge Wilson, for that which they have received from their birth: 1 Wilson's Works, 313. By being born within the allegiance of a government is only meant, being born within the protection of its laws, with a consequent obligation to obey them when obedience can be rendered.

So also as to members of the Indian tribes within the limits of the United States; these tribes are independent political communities, retaining in many respects the right of selfgovernment, notwithstanding they are under the protecting power of the United States, and a member thereof, though born in the country, is not by his birth a citizen of the United States under the fourteenth amendment. He is not boru under their actual and exclusive jurisdiction, which the amendment contemplates: McKay v. Campbell, 2 Sawyer, 118; U. S. v. Osborne, 6 Ibid., 406; Worcester v. Georgia, 6 Peters, 515.

Independently of the constitutional provision, it has always been the doctrine of this country, except as applied to Africans brought here and sold as slaves and their descendants, that birth within the dominions and jurisdiction of the United States of itself creates citizenship. This subject was elaborately considered by assistant vice-chancellor Sanford, in Lynch against Clarke, found in the first volume of his reports. In that case, one Julia Lynch, born in New York, in 1819, of alien parents, during their temporary sojourn in that city, returned with them the same year to their native country, and always resided there afterwards. It was held that she was a citizen of the United States.

After an exhaustive examination of the law, the vice-chancellor said that he entertained no doubt that every person born within the dominions and allegiance of the United States, whatever the situation of his parents, was a natural born citizen; and added, that this was the general understanding of the legal profession, and the universal impression of the public mind. In illustration of this general understanding, he mentions the fact, that when at an election an inquiry is made whether the person offering to vote is a citizen or an alien, if he answers that he is a native of this country the answer is received as conclusive that he is a citizen; that no one inquires further; no one asks whether his parents were citizens or foreigners; it is enough that he was born here, whatever was the status of his parents. He shows also that legislative expositions on the subject speak but one language, and he cites to that effect not only the laws of the United States, but the statutes of a great number of the states, and establishes conclusively that there is on this subject a concurrence of legislative declaration with judicial opinion, and that both accord with the general understanding of the profession and of the public.*

Whether it be possible for an alien, who could be naturalized under our laws, to renounce for his children, whilst under the age of majority, the right of citizenship, which by those laws he could acquire for them, it is unnecessary to consider, as no such question is presented here. Nor is the further question before us whether, if he cannot become a citizen, he can, by his act, release any right conferred upon them by the constitution.

• In 1855 congress passed the following act, securing citizenship to children of citizens of

the United States born without their limits:

CHAP. LXXI.-An act to secure the right of citizenship to children of citizens of the United States born out of the limits thereof.

Be it enacted by the senate and house of representatives of the United States of America in congress assembled, that persons heretofore born, or hereafter to be born, out of the limits and jurisdiction of the United States, whose fathers were or shall be at the time of their birth citizens of the United States, shall be deemed and considered, and are hereby declared to be, citizens of the United States: Provided, however, that the rights of citizenship shall not descend to persons whose fathers never resided in the United States.

SEC. 2. And be it further enacted, that any woman who might lawfully be naturalized under the existing laws, married, or who shall be married, to a citizen of the United States, shall be deemed and taken to be a citizen.

Approved February 10, 1855.

The provisions of this statute are re-enacted in the revised statutes in sections 1,993 and

As to the position of the district attorney that the restriction act prevents the re-entry of the petitioner into the United States, even if he be a citizen, only a word is necessary. The petitioner is the son of a merchant, and not a laborer within the meaning of the act. Being a citizen, the law could not intend that he should ever look to the government of a foreign country for permission to return to the United States.* And no citizen can be excluded from this country except in punishment for crime. Exclusion for any other cause is unknown to our laws and beyond the power of Congress. The petitioner must be allowed to land, and it is so ordered.

SUPREME COURT OF CALIFORNIA.

No. 8,600.

IN RE ESTATE OF HOPPER.

Department One. Filed November 6, 1884.

DEVISE--CONSTRUCTION OF-SALE, AND RE-PURCHASE OF LAND DEVISED.-A testator devised to his son "all that portion of real estate he has enclosed and now has in his possession, supposed to contain one hundred and forty acres, more or less." By other provisions of the will an intention was manifested to dispose of all the property the testator possessed. Subsequent to the date of the will he sold a portion of the land devised, and afterwards bought the same back. Held, that the portion so sold and bought back passed to the son under the foregoing devise.

APPEAL from a judgment of the superior court for Napa county. The opinion states the facts.

Spencer & Henning, and Stanly, Stoney & Hayes, for the appellant.

Church & Johnson and A. J. Hull, for the respondents.

Ross, J. Charles Hopper, on the first of April, 1868, made his last will and testament, which contained a devise to his son Thomas in these words: "1 give, bequeath and devise to my son Thomas B. Hopper that portion of real estate he has inclosed and now has in his possession, supposed to be one hundred and forty (140) acres, more or less. At the date of the will, Thomas B. Hopper had inclosed and in his possession a portion of his father's land, containing about one hundred and forty acres. On the fourteenth of June, 1870, the testator sold and conveyed eighteen acres and a fraction of this tract to ene Baldwin, which portion, for convenience, will be referred to as the Baldwin tract, and on the twenty-first of February,

* The restriction act of congress of July 5, 1884, amending the act of May 6, 1882, "to execute certain treaty stipulations relating to Chinese," provides that every Chinese person other than a laborer, entitled to enter the United States under the treaty between our government and China, or under that act, shall obtain from the Chinese government or the government of which he is a subject, its permission to come within the United States, authenticated by its certificate containing various particulars of himself and family, so as to clearly identify him; and whilst such certificate is only prima facia evidence against our government, it is made the sole evidence permissible on the part of the person producing it to estab lish his right of entry into the United States: Chap. 220, sec. 6; Stats. of 1883-4, 115.

1871, sold and conveyed to one Forbes eighteen acres thereof. On the fourth of October, 1871, the testator executed a codicil to his will by which certain provisions of the will were altered, but which did not interfere with the devise to Thomas B. Hopper. On the nineteenth of July, 1872, the testator re-purchased the Baldwin tract, and thereupon entered into possession of it and remained in possession and seized in fee thereof until his death. On the twenty-fifth of January, 1878, the testator conveyed to his son Thomas by deed. that portion of the property devised to him not embraced in the conveyance to Baldwin and Forbes. After the death of the testator, which occurred on the twenty-fourth of September, 1880, his will, with the codicil, was duly admitted to probate, and administration upon the estate duly had. Upon the final distribution of the estate the question involved in this appeal arose. That question is, Who is entitled to the Baldwin tract-Thomas B. Hooper or the residuary legatee?

According to the rule of the common law, after-acquired real estate did not pass by a will. And this rule was enforced so strictly, that a will was held to be inoperative upon real estate of which the testator was the owner at the time of the making of the will, and afterwards sold, re-purchased, and died seized-which is the exact case at bar. Tested, therefore, by the rule of the common law, it is plain that Thomas B. Hopper would not be entitled to the disputed premises. But in this state, as in many others, that rule has been changed by statute. Section 22 of the act of April 10, 1850, as amended in 1866 (Stats. 1865-6, p. 381), provides: "Any estate, right or interest in lands acquired by the testator after the making of his will, shall pass thereby and in like manner as if (possessed) at the time of making the will, if such shall manifestly appear by the will to have been the intention of the testator. Every will made in express terms, devising, or in any other terms, denoting the intent of the testator to devise all the real estate of such testator, shall be construed to pass all such real estate which such testator was entitled to devise at the time of the decease of such testator."

lf, therefore, from a fair reading of the will in question, it appears that it was the intent of the testator thereby to devise all of the property of which he should die seized, it is within the operation of the statute to give effect to that intention: Redfield on Wills, voi. 1, pp. 333, 338, 4th ed.; Brimmer v. Sohier, 1 Cush., 132; Winchester v. Forster, 3 Cush., 369; Laggett v Ward, 23 Mo., 127; Quinn v. Hardenburg, 54 N. Y., 87.Every testator is aware, as said in Brimmer v. Sohier, supra "that his will can not take effect until after his death; that until that event all his property remains at his disposal, and, ordinarily, it is from that period that his intention to settle its final distribution may be presumed." But the language of the will we are considering makes manifest the intent of the testator to dispose thereby of all of the property he might own at his death. By it he first directs payment of all his legal debts, after

which he devises and bequeaths to his wife all the real estate, money, and other property "which may remain after satisfying the following provisions, for her sole use and benefit, during the term of her natural life, to be disposed of at her death as hereinafter mentioned." The provisions to be satisfied, according to the terms of the will, before the devise and bequest of the wife becomes effective, are certain specific devises, among which is the one to Thomas B. Hopper. After these specific devises are satisfied and the debts paid, all of the remaining property is to go to the widow during her natural life, and afterwards, as further directed by the testator. We think the language of the will clearly denotes the intention of the testator to dispose of all of the property he should leave at the time of his death, and as he owned the property in question at that time, and as by the terms of the will it is devised to Thomas B. Hopper, he is entitled to have it awarded to him in and by the decree of distribution.

Judgment reversed and cause remanded for further proceedings not inconsistent with this opinion.

MCKINSTRY, J., and MCKEE, J., concurred.

No. 8,488.

WHEELER v. BOLTON.

Department One. Filed November 6, 1884.

IDENTIFICATION OF LAND DEVISED EVIDENCE TO SHOW. In an action by a devisee to recover the value of a tract of land distributed to him, but which had been lost to the estate of the testator by the inexcusable negligence of an executor, extrinsic evidence is admissible to identify the land described in the complaint by metes and bounds, with that described in the inventory and decree of distribution."

APPEAL from an order of the superior court for the city and county of San Francisco, granting the plaintiff a new trial. The opinion states the facts.

Daniel Rogers, for the appellant.

B. S. Brooks, for the respondent.

MCKEE, J. On the trial of this case the court excluded the testimony which the plaintiff offered to maintain, on her part, the issues made by the pleadings in the case, and granted a non-suit; but afterwards set aside the non-suit and ordered a new trial. From the order granting a new trial the defendant appeals.

Presumptively, the order was correct. But the appellant contends that it is erroneous, because the evidence offered by the plaintiff to maintain her cause of action was clearly inadmissible for that purpose.

The cause of action was this: On the seventh of September, 1850, William L. Carman, died in the city of San Francisco, seized and in possession of a tract of land, described in the complaint by metes