“He’s talking about expatriation there, something that English Common Law did not allow, at all, for anybody.”
There was considerable discussion about whether or not expatriation was allowed in the United States. In fact, there were several cases which discussed the question.
In Talbot v. Jansen, Justice Iredell wrote,
“This involves the great question as to the right of expatriation, upon which so much has been said in this cause. Perhaps it is not necessary it should be explicitly decided on this occasion, but I shall freely express my sentiments on the subject.”
“That a man ought not to be a slave; that he should not be confined against his will to a particular spot because he happened to draw his first breath upon it; that he should not be compelled to continue in a society to which he is accidentally attached, when he can better his situation elsewhere, much less when he must starve in one country, and may live comfortably in another, are positions which I hold as strongly as any man, and they are such as most nations in the world appear clearly to recognize.”
“The only difference of opinion is as to the proper manner of executing this right.”
“Some hold that it is a natural unalienable right in each individual; that it is a right upon which no act of legislation can lawfully be exercised, inasmuch as a legislature might impose dangerous restraints upon it; and of course it must be left to every man’s will and pleasure to go off when and in what manner he pleases.”
“This opinion is deserving of more deference because it appears to have the sanction of the Constitution of this state, if not of some other states in the Union.”
“I must, however, presume to differ from it, for the following reasons:”
He then cites 5 reasons that “expatriation” is not a natural right but one that must be defined by the legislature.
http://supreme.justia.com/cases/federal/us/3/133/case.html
In the Case of Isaac Williams, Chief Justice Ellsworth (a Framer) wrote,
“The common law of this country remains the same as it was before the revolution. The present question is to be decided by two great principles; one is, that all the members of a civil community are bound to each other by compact; the other is, that one of the parties to this compact cannot dissolve it by his own act. The compact between our community and it’s members is, that the community shall protect it’s members, and on the part of the members, that they will at all times be obedient to the laws of the community, and faithful in it’s defence.”
In the case of the United States v. Gillies (1815) Justice Washington wrote,
“I do not mean to moot the question of expatriation, founded on the self will of a citizen, because it is entirely beside the case before the court. It may suffice for the present to say, that I must be more enlightened upon this subject than I have yet been, before I can admit, that a citizen of the United States can throw off his allegiance to his country, without some law authorising him to do so.
It wasn’t until 1868 that the right of expatriation became law in the United States.
BTW, if you reread Justice Iredell’s statement in Talbot v. Jansen, he appears to be saying that citizenship is based on place of birth.
“That a man ought not to be a slave; that he should not be confined against his will to a particular spot because he happened to draw his first breath upon it; that he should not be compelled to continue in a society to which he is accidentally attached, when he can better his situation elsewhere,”
The common law of this country varied colony by colony in the colonial era and continued to vary state by state after nationhood.
There was no consistent common law in the British North American Colonies. Some colonies were created via royal charter, some were proprietorships, some were tantamount to corporations, some were acquired/assumed from other nations. Some ignored English rule altogether, some were grudging or spotty about it, some adhered as best they were able, moreso in settled areas, much less so in rustic frontier areas.
There were a variety of influences upon the various colonial legal systems as a result. Many allowed and recognized common law marriage by consent and cohabitation with no legal or religious requirements whatsoever, which was very unlike England and more like ancient Rome, which inspired it.
Common law in the United States did not and does not at all mean what you appear to believe it means. It did not mean English Common Law in force and enforced across all the colonies, and of course it did not mean that after nationhood, either. Every State had common law, sometimes unique to that State.
This extended to determining just who was and who was not a citizen. Sone States had citizens in their colonial period. Some States had subjects in their colonial period. This spilled over in State courts under Starehood.
Attempting to equate State law with Federal law is also a mistake.
The issue was much debated in subsequent years with some saying yes, and others saying "no", but the fact is, from the British law perspective, the answer was uniformly "no." There was no dissent on this at all.
Sir Michael Foster, Discourse on High Treason
Sect. 1. With regard to Natural-born Subjects there can be no Doubt. They owe Allegiance to the Crown at all Times and in all Places. This is what We call Natural Allegiance, in Contradistinction to that which is Local. The Duty of Allegiance, whether Natural or Local, is founded in the Relation the Person standeth in to the Crown, and in the Privileges He deriveth from that Relation. Local Allegiance is founded in the Protection a Foreigner enjoyeth for his Person, his Family or Effects during his Residence here; and it Ceaseth whenever He withdraweth with his Family and Effects. Natural Allegiance is founded in the Relation every Man standeth in to the Crown considered as the Head of that Society whereof He is born a Member; and on the peculiar Privileges He deriveth from that Relation, which are with great Propriety called his Birthright. This Birthright nothing but his own Demerit can deprive Him of; it is Indefeasible and perpetual. And consequently the Duty of Allegiance which ariseth out of it, and is inseperably Connected with it, is in Consideration of Law likewise Unalienable and Perpetual.