----
FROM THE RICHMOND INQUIRER.
CASE OF JAMES McCLURE.
The Case of this man has made a good deal of stir in the U[nited] States—and has lately been revived by a letter, from a Mr. John Rodman, dated Paris, 4th July 1811, and addressed to the Editor of the "United States Gazette." The facts appear to be these:
James McCLure was born in the U.S. on the 21st of April 1785—some months after his birth (that is on the 20th Feb. 1786), his father was duly naturalized under the laws of the State of South Carolina. The son remained in the U.S. until the year 1795 when he was sent to England for his education. He has not since returned to this country; but resided for some years in England, and then made a trip to Holland and other parts of the continent.—His father also left the U.S. and returned to his country; G[reat] Britain.—Some time in the year, 1807, Mr. James McClure dispatched from England, the famous ship Horizon destined to Lima: which was wrecked on the rocks of Morlaix, and as is generally known, was the very first case in which the Berlin Decree was put into execution against the U.S.—Mr. McC[lure] went to France to reclaim the property of the ship; carrying with him a Passport from the American Minister in London confessing him to be a native citizen of the U.S. On the 12th April 1810, an order was issued by the Minister of War, directing, "that in consequence of information to (him) from the minister of general police, and which he has received from the Minister plenipotentiary of the U. States", Mr. J[ames] McC' should be detained in France "as an English prisoner of France." Accordingly he was arrested at L'Orient——sent under parole, and placed under surveillance at Tours. Gen. [John] Armstrong [Jr.] would not interfere on his behalf——on the 16th of March, 1810 he writes him that the certificates of his father's naturalization, and of his own birth and baptism, were not sufficient; they only provide that his father is an American Citizen, and that he himself was born in the U.S. and that "the evidence that will reach the case & substantiate (his) claim is a certificate copy of the act of S[outh] Carolina, naturalizing (his) father, provided that act naturalizes also the children of (his) father born before its own date."
Mr. Rodman afterwards met with Mr. McClure at Tours, and being touched with his situation, determined to intercede with Gen. A[rmstrong] on his return to Paris. The general was however about to leave France—and Mr. R[odman] thought fit to address himself to Mr. Russell, Charge d'affaires at Paris. In reply, Mr. [Jonathan] R[ussell] tells him that "Mr. McC' must claim to be a citizen of the United States either under a law thereof, or under a law of the state of S. Carolina; that Gen. A' not considering the law of the U.S. to embrace the case of Mr. McC', required that he should show himself be within the provisions of the state statute: that the words if dwelling in the U.S. appear to occasion the whole difficulty deciding on the rights of Mr. McC'. "Is this dwelling (continues Mr. R[ussell]) to be at the time of the naturalization of the father; at or after passing the law, or the time of claiming to be considered a citizen? Gen. Armstrong, it seems, decided against the first, and the two last are conclusive against Mr. McClure. As I act under Gen. A' in this legation, it is not competent in me to admit appeals from his judgment." Mr. Rodman also applied to Mr. [Alexander] McRae, our consul in Paris, to whose department the granting of passports had been transferred—their correspondence went off upon a subordinate point, which it is not necessary to state—It is certain, these applications did no good to Mr. McC', who yet remains perhaps under surveillance at Tours.
In my Judgment, however, our minister has erred in his decision—& Mr. McClure ought to have been held as a citizen of the United States. Mark! We are not considering what the law ought to be; but what it is——If the case of Mr. McClure comes within any of the U.S. Acts, it is the 4th section of the Act of April, 1802—which is in these words: "The children of persons duly naturalized under any of the laws of the United States, or who previous to the passing of any law on that subject, by the government of the U.S. may have become citizens of any one of the said states, under the laws thereof, being under the age of twenty-one years, at the time of their parent's being so naturalized or admitted to the rights of citizenship, shall, if dwelling in the U.S. be considered as Citizens of the United States; and the children of persons who now are, or have been citizens of the United States, shall, though born out of the limits and jurisdiction of the U.S. be considered as citizens of the U. States: Provided that the right of citizenship shall not descend to persons whose fathers have never resided within the U. States, &c. &c."
And now, what is the case of James McC'? His father was citizen of the state of S. Carolina, before any act was passed by the United States "on that subject." James McC' is then the child of a naturalized citizen—he was "under the age of 21, at the time of his naturalization"—So far his case is within the law. The only doubt is, as Mr. Russel says, as to the expression "if dwelling in the United States." When must he have dwelt in the United States? To what period of time, does the section point?—If to the the time of "passing the law," the expression would not have been so vague—Congress would have put in some definite phrase, as "at this time" or "now," as they do immediately after in the same section.—If to the "time of claiming to be considered a citizen," then is the party both a citizen and not a citizen; a citizen in the United States, but not one out—in which case, the citizen father has greater rights than his citizen son, because the father has all the rights of one, both within the United States and elsewhere.—By the same rule it is, that if a man were to be naturalized for 20 years, and then to marry and have a child, that child could not dwell in a foreign country without an absolute forfeiture of his rights. It is doubtful whether the legislature of the United States have ever contemplated such a state of things—for, by this rule, thousands who are now considered citizens would really cease to be such.
To my eye, the spirit of the act appears to be this—that the child should be with the parent, dwelling in the United States with him at the time of his naturalization—thus distinguishing between those children who are with him at that time, and those whom he has left behind him in his native country. The law naturalizes the former with him by saying grace once over them, as Dr. Franklin said: presuming that as they are here at that time, they will remain here for life; but the same grace does not extend to those who have remained behind. Mr. Rodman hints, that it would have been sufficient for James McClure to have been born in the United States—he is mistaken. The law of the United States recognizes no such claim. The law of Virginia, of 1792, does—for, "all free persons born within the territory of this commonwealth," is deemed a citizen. The law of Virginia considers him as a son of the soil. An alien, as well as a citizen, may beget a citizen—but the U. States' act does not go so far. A man must be naturalized to make his children such.
If it be said the law is defective, we shall not dispute the point. We shall not say, but that it ought to deprive every naturalized foreigner of the privileges with which it had clothed him, provided he returns for a certain series of years to that native domicile he had abandoned.—And again, might there not be an[sic] United States' expatriation law? For, as we permit a man to enjoy the rights of a freeman to move from his country at the call of his own interests, we ought also to permit him to snap the ties which bind him to that country. Thus, if found in arms against us, would he not be treated as a rebel, instead of a prisoner of war?
These ideas are suggested with a considerable diffidence——The case of James McClure is clearly a nice one——and even if I had not the best reasons to ascribe the purest motives to General Armstrong in this transaction, still there is dubious complexion in the case which might lead me to think, that a very honest and enlightened man might honestly differ with me on the occasion.
PUBLIUS
----
End quote.
So here are the facts of this particular series of events.
James McClure [hereafter McC] was born in South Carolina in 1785, when the Articles of Confederation were still the governing document of the United States; not the Constitution. His father was subsequently naturalized; however, according to an act of the United States (namely, the Naturalization Act of 1802), the following provision would have applied: "Sec. 4 . And be it further enacted, That the children of persons duly naturalized under any of the laws of the United States, or who, previous to the passing of any law on that subject, by the government of the United States, may-have become citizens of any one of the said states, under the laws thereof, being under the age of twenty-one years, at the time of their parents being so naturalized or admitted to the rights of citizenship, shall, if dwelling in the United States, be considered as citizens of the United States, and the children of persons who now are, or have been citizens of the United States, shall, though born out of the limits and jurisdiction of the United States, be considered as citizens of the United States: Provided, that the right of citizenship shall not descend to persons whose fathers have never resided within the United States : Provided also, that no person heretofore proscribed by any state, or who has been legally convicted of having joined the army of Great Britain, during the late war, shall be admitted a citizen, as aforesaid, without the consent of the legislature of the state in which such person was proscribed."
James McC, to pursue his education, left this country in 1795 at the age of 10. As far as is known from this record, he never returned to America between 1795 and 1807.
James McC, at the age of 22 in 1807, leaves England to claim property from a shipwrecked vessel that had been interred in France. However, due to the mentioned decree of Berlin passed in 1806 by Napoleonic France, the following articles applied to the vessel "Horizon" as a result of the blockade placed on Great Britain: "No vessel coming directly from England, or from the English colonies, or having been there since the publication of the present decree, shall be received into any port. Every vessel contravening the above clause, by means of a false declaration, shall be seized, and the vessel and cargo confiscated, as if they were English property."
James McC, in 1810, is arrested in France as an English prisoner. (Undisclosed: the reason for the gap between 1807 to 1810, or why the passport issued by the American minister in London [who from 1803 thru October 1807 was James Monroe; his successor as ambassador, William Pinkney, did not officially become ambassador until February 1808; however, he had worked alongside Monroe in a co-ministerial position as early as 1806, so McClure's passport would have been issued by either Monroe or Pinkney) was rejected by the French authorities; any potential concerns regarding diplomatic conflicts with Britain and/or France in light of the ongoing Napoleonic Wars is also left unmentioned.)
Publius then recounts the attempted appeals by one John Rodman to both John Armstrong Jr. (America's then-ambassador to France), Jonathon Russell (the 'Charge d'affaires', i.e. the diplomatic chief of mission acting in lieu of the ambassador, as Armstrong's successor, Joel Barlow, had not yet arrived; this likely explains why Russell claimed he could not "admit appeals" to Armstrong's judgment, as the ambassador outranked him), and finally Alexander McRae, the acting American consul at Paris.
Now, it should be said: before going into his rationale, the pseudonymous Publius first states outright that General Armstrong had erred in his decision, and that James McClure should have been recognized as a citizen.
That being said, regarding the section you specifically highlighted, wherein Publius rebuts Mr. Rodman on the matter of James McClure's birth in the United States to be sufficient on the matter of birthright citizenship: he does not absolutely deny his claim, but distinguishes based on state. As Publius noted: had Mr. McClure been born in Virginia (where "an alien, as well as a citizen, may beget a citizen", since "Virginia considers him as as son of the soil"), then he would have been a citizen of the United States solely on account of birth. However, the laws of other states (such as South Carolina) were, apparently, not so liberal with regards to "jus soli"; hence why Mr. Rodman's claim was not universally true for all states, but only for some.
Lastly, based on Publius's final remarks, and given the facts regarding James McClure's life (after leaving the country at the age of 10 in 1795, he did not return whatsoever between then and 1810, where he was 25 years of age; it is not disclosed in this newspaper record if James McClure ever returned), it is not unreasonable to consider whether his actions constituted voluntary expatriation (i.e. a voluntary renunciation of his American citizenship).
Overall, this case is not as open-and-shut as you seem to imply (as Publius himself admits, it comes with "dubious complexion"), since it involves, among other things: differences in state laws regarding citizenship, the actual difficulties with regards to timing of who is and is not a citizen given the switch from British colonies to American states (per Publius: "It is doubtful whether the legislature of the United States have ever contemplated such a state of things—for, by this rule, thousands who are now considered citizens would really cease to be such."), apparent defects wrought by ambiguous terminology in promulgated Congressional legislation, whether the person in question had de facto voluntarily renounced his American citizenship, and potential intrigue involving foreign powers then at war with each other (one of which we would end up declaring war with not even a year after John Rodman's letter was published in the United States Gazette).
/but overall, it was well worth transcribing
Paine was born in England in 1737, and emigrated to the United State in November 1774. As a Founding Father, Paine held several prominent positions in the newly formed United States:
A close friend of Morris in the Continental Congress was Gouverneur Morris (no relation) of New York. This would become a factor later in Paine's life
In December 1793, Paine was in France and was arrested by Robespierre as a foreign conspirator during the Reign of Terror. The Minister of the United States to the French Government just happened to be none other than Gouverneur Morris, who declined to rescue Paine from prison stating that he was not an American citizen. Paine was eventually released after James Monroe replaced Gouverneur Morris as the American Minister.
Fast-forward to May 1807, Thomas Paine was denied the right to vote in the New Rochelle NY election by local election official Elisha Ward, who cited the refusal of Gouverneur Morris to "reclaim" Paine when he was imprisoned in France. Paine wrote a letter to former New York Governor and now Vice President George Clinton asking for relief, accusing Ward and three other people of being Tories who supported the British during the Revolutionary War who eventually became election inspectors in New Rochelle.
Ultimately, Paine got no relief, likely because he pissed off so many people during the post-Revolution and French Revolution periods. It is interesting to see how "fragile" American citizenship was in the early days. When you compare Thomas Paine to Robert Morris, they were born within a few years of each other, both emigrated to the United States (Morris as a teen, Paine as an adult), and both served in the Continental Congress, Morris served in the United States Senate. Yet it was Paine's citizenship that was questioned and ultimately rescinded, if not legally then by politically by ostracization from powerful people.
Here is the full text of the letter that Thomas Paine wrote to George Clinton. It mentions the subject matter in the original post.
To George Clinton May 4, 1807NEW YORK,
RESPECTED FRIEND:
Elisha Ward and three or four other Tories who lived within the British lines in the Revolutionary war, got in to be inspectors of the election last year at New Rochelle. Ward was supervisor. These men refused my vote at the election, saying to me: "You are not an American; our minister at Paris, Gouverneur Morris, would not reclaim you when you were imprisoned in the Luxembourg prison at Paris, and General Washington refused to do it." Upon my telling him that the two cases he stated were falsehoods, and that if he did me injustice I would prosecute him, he got up, and calling for a constable, said to me, "I will commit you to prison." He chose, however, to sit down and go no farther with it.
I have written to Mr. Madison for an attested copy of Mr. Monroe's letter to the then Secretary of State Randolph, in which Mr. Monroe gives the government an account of his reclaiming me and my liberation in consequence of it; and also for an attested copy of Mr. Randolph's answer, in which he says: "The President approves what you have done in the case of Mr. Paine." The matter I believe is, that, as I had not been guillotined, Washington thought best to say what he did. As to Gouverneur Morris, the case is that he did reclaim me; but his reclamation did me no good, and the probability is, he did not intend it should. Joel Barlow and other Americans in Paris had been in a body to reclaim me, but their application, being unofficial, was not regarded. I then applied to Morris. I shall subpoena Morris, and if I get attested copies from the Secretary of State's office it will prove the lie on the inspectors.
As it is a new generation that has risen up since the declaration of independence, they know nothing of what the political state of the country was at the time the pamphlet Common Sense appeared; and besides this there are but few of the old standers left, and none that I know of in this city.
It may be proper at the trial to bring the mind of the court and the jury back to the times I am speaking of, and if you see no objection in your way, I wish you would write a letter to some person, stating, from your own knowledge, what the condition of those times were, and the effect which the work Common Sense, and the several members of the Crisis had upon the country. It would, I think, be best that the letter should begin directly on the subject in this manner: Being informed that Thomas Paine has been denied his rights of citizenship by certain persons acting as inspectors at an election at New Rochelle, etc.
I have put the prosecution into the hands of Mr. Riker, district attorney, who can make use of the letter in his address to the Court and Jury. Your handwriting can be sworn to by persons here, if necessary. Had you been on the spot I should have subpoenaed you, unless it had been too inconvenient to you to have attended.
Yours in friendship,
THOMAS PAINE.
One day earlier, Paine sent a letter to James Madison seeking documents supporting his description of events relayed in the original post.
To James Madison May 3, 1807NEW YORK,
SIR:
When Mr. Monroe came Minister from the United States to the French Government I was still imprisoned in the Luxembourg by the Robespierre party in the convention. The fall of Robespierre took place a few days before Mr. Monroe reached Paris, and as soon as Mr. Monroe could make his own standing good, which required time on account of the ill conduct of his predecessor Gouverneur Morris, he reclaimed me as an American citizen, for the case was, I was excluded from the convention as a foreigner and imprisoned as a foreigner. I was liberated immediately on Mr. Monroe's reclamation.
Mr. Monroe wrote an official account of this to the secretary of state, Mr. Randolph, and also an account of what he had done for Madame LaFayette who was also imprisoned, distinguishing the one to be done officially, and the other, that for Madame LaFayette, to be done in friendship. In Mr. Randolph's official answer to Mr. Monroe's letter, he says as nearly as I recollect the words, "The President [Mr. Washington] approves what you have done in the case of Mr. Paine." My own opinion on this matter is, that as I had not been guillotined Washington thought it best to say what he did.
I will be obliged to you for an attested copy of Mr. Monroe's letter and also of Mr. Randolph's official answer so far as any parts of them relate to me. The reason for this application is as follows,
Last year 1806 I lived on my farm at New Rochelle, State of New York; a man of the name Elisha Ward was supervisor that year. The father of this man and all his brothers joined the British in the war; but this one being the youngest and not at that time old enough to carry a musket remained at home with his mother.
When the election (at which the supervisor for the time being presides) came on at New Rochelle last year for Members of Congress and Members of state assemblies, I tendered my tickets separately distinguishing which was which, as is the custom; each of which Ward refused, saying to me "You are not an American Citizen." Upon my beginning to remonstrate with him, he replied, "Our minister at Paris, Gouverneur Morris, would not reclaim you as an American Citizen when you were imprisoned in The Luxembourg at Paris, and General Washington refused to do it."
I accordingly commenced a prosecution against him last fall and the court will set the 20th of this May. Mr. Monroe's letter to the secretary and the secretary's official answer are both published by Mr. Monroe in his views of the conduct of the executive printed by Benjn Franklin Bache. But as a printed book is not sufficient evidence an attested copy from your office will be necessary.
As to Gouverneur Morris, the fact is, that he did reclaim me on my application to him as Minister, but his reclamation of me did me no good, for he could hardly keep himself out of prison, neither did he do it out of any good will to me.
THOMAS PAINE.
-PJ
Lot of work that.
But *IF* the writer is indeed Madison, then it calls into question his defense of William Laughton Smith when challenged by David Ramsey.
Madison would seem to be on both sides of the issue, depending upon what was in his best political interest. I see the same sort of effect with His participation in the Virginia Ratification committee that drafted Virginia's ratification language which specifically says that Virginia can re assume the powers given up to the Federal government.
40 years later in a letter he said states didn't have a right to secede.
Again, Madison would appear to believe whatever is necessary for his political benefit.
I happen to know why Madison would be so adamant that James McClure not be regarded as a citizen of the US. It's a very interesting story, and someone should write a book about it.
Can you guess why Madison did not want to regard James McClure as a US Citizen? Why he delayed so long in ordering the Ambassador to intervene?