If you need it here is a link:
http://tesibria.typepad.com/whats_your_evidence/Lynch_v_Clarke_1844_ocr.pdf
I know it is not a SCOTUS case, but the argument he makes is still interesting.
“The Congress was authorized to provide for the punishment of felonies committed on the high seas, and for punishing certain other crimes. The common law furnished the only definition of felonies The trial of all crimes, except in cases of impeachment, was to be by jury; and the constitution speaks of treason, bribery, indictment, cases in equity, an uniform system of bankruptcy, attainder, and the writ of habeas corpus; all which were unknown even by name, to any other system of jurisprudence than the common law. In like manner, the amendments to the constitution make provisions in reference to the right of petition, search warrants, capital crimes, grand jury, trial by jury, bail, fines, and the rule of the common law. In these instances, no legislative definition or exposition was apparently deemed necessary by the framers of the constitution. They are spoken of as substantial things, already existing and established, and which will continue to exist.” Lynch v. Clark, NY 1844.
I think I would have expanded his discussion of felonies to point out Blackstone’s “Commentaries on the Laws of England”, Book 4 Chapter 5 titled “Of Offenses against the Law of Nations”. And Blackstone’s discussion of the types of offenses. He lists three but its the third one that is interesting - “piracy”. And he describes “piracy” as “The offense of piracy, by common law, consists in committing those acts of robbery and depredation upon the high seas, which if committed upon land, would have amounted to felony there.” So we have offenses against the law of nations, piracy and felonies on the high seas. Which sounds similar to Article I Section 8 clause 10 of the US Constitution.
“To define and punish Piracies and Felonies committed on the high seas, and offences against the Law of Nations.”
And I think I would have included a discussion of “ex post facto” laws (Article I Section 9 clause 3). In particular, I would have included the following passage from Madison’s “Notes on the Debates in the Federal Convention”. August 29, 1787 -”Mr. DICKENSON mentioned to the House that on examining Blackstone’s Commentaries, he found that the terms, “ex post facto” related to criminal cases only; that they would not consequently restrain the States from retrospective laws in civil cases, and that some further provision for this purpose would be requisite.” Apparently Blackstone’s Commentaries was at the convention.
Parsifal,
Have you ever wondered why there is not a single, solitary piece of evidence that the framers of the constitution considered Vattel’s definition of citizenship. I mean written evidence, not theory or conjecture. The Founder’s loved to write, if alive today, they would probably all have blogs and be twittering each other constantly. Yet in all their letters to each other, in all their diaries and journals, in all their autobiographies, in all their political phamplets not one single mention of the change to Vattel’s definition of citizenship.
Jay, Madison, and Hamilton wrote 85 Federalist Papers in which they dissected every aspect of the new constitution. In some 20 of them, they discuss the executive branch and the new office of presidency. In one, they discuss the presidential salary. But they never discuss the qualifications to be president.
Do you think it would have been negligent of the Framers to change the definition of citizenship, the one that they had been using for 300 hundred years and not tell anyone? Even if they didn’t tell anyone what the new definition was, shouldn’t they have at least mentioned that there was a new definition?
Which gets us back to Lewis Sandford’s quote from Lynch v Clark. The Founders didn’t have to explain the Constitution’s definition of habeas corpus or ex post facto, because they were well defined terms. Terms whose meaning were well understood, that didn’t need to be explained. Terms from the common law.
Which is probably why they didn’t feel the need to explain or define the meaning of “natural born”.
True. The Vattel stuff is a end around play. The courts are not masochistic. They’re not going to torture themselves to add a third kind of citizen definition when they don’t have to.
Plus, the non-legal types do not know about the reception(?) statutes whereby English common law was adopted by the states. That is why law students have to suffer thru Haxley Buxtenfield or whatever and the Statute of Frauds, etc. And every colonial frontier lawyer has his Americanized Blackstone set. I have a mismatched set from the 1840’s(?).
English common law is not something the courts are unfamiliar with. This would be a really fun thing to brief up, except for the fact that Wong has already done all the heavy lifting.
I enjoy the historical perspective of law. I had top habeus paper by doing “The Rime of The Habeus Petitioner” wherein I rewrote the Rime of the Ancient Mariner into a habeus poem, with annotations and extensive footnotes. A blast. Cited works from Salem Witch trials, 1812 Travels in India, etc.. Professors wanted me to publish it. Maybe one day....
parsy, who is out of action for a while