You were claiming that Shanks stands for the proposition that "the Framers, in matters of citizenship, looked to the law of nations." No. Nothing in Shanks states that. By contrast, Perkins v Elg makes clear that in matters of citizenship, our municipal law governs.
As to Story's opinion in Shanks: Here is precisely what he says on point: "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.
And I put you to the task of quoting the text to demonstrate Story makes no reference to the "Framers" or that our citizenship laws follow the law of nations. Shanks involved potentially competing claims by the U.S. and England over Ann Shanks's nationality. And resolution of the property dispute turned on application of two treaties between those nations. Treaties. Multi-nation claims. That is the stuff of the law of nations. Not birth citizenship governed solely by U.S. municipal law.
Thus, according to Story, who was the acknowledged expert at the time on the subject, what was said in English common law did not apply to this broad category just because it was set out in English common law.
Story's view was the English common law jus soli was the rule in the U.S. And this is made abundantly clear in Story's concurring opinion in Inglis v Trustees of Sailors Snug Harbor, the companion case to Shanks (the cases were decided and handed down together). Here's Story's discussion on the alienage of John Inglis, a person born in NY of date uncertain:
With these principles in view, let us now come to the consideration of the question of alienage in the present case. That the father and mother of the demandant were British born subjects is admitted. If he was born before 4 July, 1776, it is as clear that he was born a British subject. If he was born after 4 July, 1776, and before 15 September, 1776, he was born an American citizen, whether his parents were at the time of his birth British subjects or American citizens. 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.
You have asserted that Story did not say what I have just shown that he clearly said.
Story says nothing about the Framers looking to the law of nations on citizenship. Story, however, does clearly espouse the English common law rule.
I think you need to read the case a bit more carefully. The opinion, by Thompson, J., specifically says:
"How then is his father Charles Inglis to be considered? Was he an American citizen? He was here at the time of the declaration of independence, and prima facie may be deemed to have become thereby an American citizen. But this prima facie presumption may be rebutted; otherwise there is no force or meaning in the right of election. It surely cannot be said that nothing short of actually removing from the country before the declaration of independence will be received as evidence of the election, and every act that could be done to signify the choice that had been made,
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"except actually withdrawing from the country, was done by Charles Inglis. He resided in the City of New York at the declaration of independence, and remained there until he removed to England a short time before the evacuation of the city by the British in November, 1783; New York during the whole of that time, except from July to September 1776, being in possession, and under the government and control of the British, he taking a part and acting with the British, and was, according to the strong language of the witness, as much a royalist as he himself was, and that no man could be more so. Was Charles Inglis under these circumstances to be considered an American citizen? If being here at the declaration of independence necessarily made him such, under all possible circumstances he was an American citizen. But I apprehend this would be carrying the rule to an extent that never can be sanctioned in a court of justice, and would certainly be going beyond any case as yet decided.
"The facts disclosed in this case, then, lead irresistibly to the conclusion that it was the fixed determination of Charles Inglis the father, at the declaration of independence, to adhere to his native allegiance. And John Inglis the son must be deemed to have followed the condition of his father, and the character of a British subject attached to and fastened on him also, which he has never attempted to throw off by any act disaffirming the choice made for him by his father.
"The case of McIlvaine v. Coxe's Lessee, 4 Cranch 211, which has been relied upon, will not reach this case. The Court in that case recognized fully the right of election, but considered that Mr. Coxe had lost that right by remaining in the State of New Jersey not only after she had declared herself a sovereign state, but after she had passed laws by which she pronounced him to be a member of, and in allegiance to the new government; that by the Act of 4 October, 1776, he became a member of the new society, entitled to the protection of its government. He continued to reside in New Jersey after the passage of this law and until sometime in the year 1777, thereby making his election to become a member of the new government, and the doctrine of allegiance became applicable to his case, which rests on the
Page 28 U. S. 125
"ground of a mutual compact between the government and the citizen or subject, which it is said cannot be dissolved by either party without the concurrence of the other. It is the tie which binds the governed to their government, in return for the protection which the government affords them. New Jersey, in October, 1776, was in a condition to extend that protection, which Coxe tacitly accepted by remaining there. But that was not the situation of the City of New York; it was in the possession of the British. The government of the State of New York did not extend to it in point of fact.
"The resolutions of the convention of New York of 16 July, 1776, have been relied upon as asserting a claim to the allegiance of all persons residing within the state. But it may well be doubted whether these resolutions reached the case of Charles Inglis. The language is
"`that all persons abiding within the State of New York, and deriving protection from the laws of the same, owe allegiance to the said laws, and are members of the state.'
"Charles Inglis was not, within the reasonable interpretation of this resolution, abiding in the state and owing protection to the laws of the same. He was within the British lines, and under the protection of the British army, manifesting a full determination to continue a British subject. But if it should be admitted that the State of New York had a right to claim the allegiance of Charles Inglis, and did assert that right by the resolution referred to, still the case of McIlvaine v. Coxe does not apply"
Thus the case applied British common law for the reasons stated in the material quoted above, that is to say, because father and son elected to be and stay British subjects.
In point of fact the right of election upon which the case turned, was established in the law of nations as Justice Thompson noted, citing specifically Vattel,and such American authorities as Kent's [he of Columbia law school] Commentaries on American Law, and American cases, where he says:
"This right of election must necessarily exist in all revolutions like ours, and is so well established by adjudged cases that it is entirely unnecessary to enter into an examination of the authorities. The only difficulty that can arise is to determine the time when the election should have been made. Vattel, B. 1, ch. 3, sec. 33; 1 U. S. 1 Dall. 58; 2 U. S. 2 Dall. 234; 20 Johns. 332; 2 Mass. 179, 236, 244, note; 2 Pickering 394; 2 Kent's Com. 49."
You have been extraordinarily selective in choosing a small passage from Snug Harbor, and, in doing so, have distorted and misrepresented its holding. It turned upon a right of election carried into early American law from the law of Nations; English law applied to the Inglises father and son because of the election that they made to be British subjects. So, to sum it up, what I said about what Story held in Shanks is in fact correct. I believe that you failed to carefully read Snug Harbor.