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The claim has been made that of the two potential sources of American citizenship law, de Vattel’s Law of Nations carries with it a “preponderance of evidence” that it was favored over English common law. The difference is fundamentally that of jus solis vs. jus sanguinis. It is uncontested that under 300 years of English common law (at the time of the Framing), anybody born on British territory was a “natural born subject” of the Crown. In contrast, de Vattel expounded the continental European model usually represented by France in which citizenship at birth was passed via the parents, particularly the father.

In support of the claim that a “preponderance of evidence” favors de Vattel, Birthers offer references in which de Vattel was cited as an authority or object of praise by Founders and Framers such as Benjamin Franklin and John Adams. Significantly, not a single one of them ever mentions citizenship. Syc1959 for example has compiled on his blog a compendium of almost 75 quotations in which de Vattel in mentioned, not all of them favorable to his opinions. But most importantly, not a single one of them even contains the word “citizen.” De Vattel was absolutely an influence on the Framers in terms of their views on sovereignty, neutrality policy, treaties and domicile. But there has not been identified a single case where any American authority has deferred to de Vattel on any issue of citizenship.

In contrast, what can we find regarding citizenship and its connection to English common law, above and beyond the fact that the phrase “natural born citizen” is itself a common law term of art? What follows is a non-inclusive list of comments covering the first 80 years of our constitutional republic made by legal authorities, jurists, lawyers and statement… people in a position to know the common understanding of the Constitutional definition of “natural born citizenship.” In each of therm, pay attention to whether they are defending the English common law jus solis or the French jus sanguinis versions of citizenship at birth.

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James Madison, Framer, The Founders’ Constitution Volume 2, Article 1, Section 2, Clause 2, Document 6 (1789)

“It is an established maxim, received by all political writers, that every person owes a natural allegiance to the government of that country in which he is born. Allegiance is defined to be a tie, that binds the subject to the state, and in consequence of his obedience, he is entitled to protection… The children of aliens, born in this state, are considered as natural born subjects, and have the same rights with the rest of the citizens.”

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Zephaniah Swift, Member of US Congress 1793-1797 A system of the laws of the state of Connecticut: in six books, Volumes 1-2 of A System of the Laws of the State of Connecticut: In Six Book, pg. 163,167 (1795)

“A man born within the jurisdiction of the common law is a citizen of the country wherein he is born. By this circumstance of his birth, he is subjected to the duty of allegiance which is claimed and enforced by the sovereign of his native land, and becomes reciprocally entitled to the protection of that sovereign, and to the other rights and advantages which are included in the term “citizenship.”

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Garder v. Ward, 2 Mass. 244 (1805)

“The doctrine of the common law is that every man born within its jurisdiction is a subject of the sovereign of the country where he is born, and allegiance is not personal to the sovereign in the extent that has been contended for; it is due to him in his political capacity of sovereign of the territory where the person owing the allegiance as born.”

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Kilham v. Ward 2 Mass. 236, 26 (1806)

“Our statutes recognize alienage and its effects, but have not defined it. We must therefore look to the common law for its definition. By this law, to make a man an alien, he must be born without the allegiance of the commonwealth ; although persons may be naturalized or expatriated by statute, or have the privileges of subjects conferred or secured by a national compact.” “This claim of the commonwealth to the allegiance of all persons born within its territories, may subject some persons who, adhering to their former sovereign and residing within his dominions, are recognized by him as his subjects, to great inconvenience, especially in time of war, when two opposing sovereigns may claim their allegiance. But the inconvenience cannot alter the law of the land. If they return to the country of their birth, they will be protected as subjects.”

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Ainslie v. Martin, 9 Mass. 454, 456, 457 (1813).

“And if, at common law, all human beings born within the ligeance of the King, and under the King’s obedience, were natural-born subjects, and not aliens, I do not perceive why this doctrine does not apply to these United States, in all cases in which there is no express constitutional or statute declaration to the contrary. . . . Subject and citizen are, in a degree, convertible terms as applied to natives, and though the term citizen seems to be appropriate to republican freemen, yet we are, equally with the inhabitants of all other countries, subjects, for we are equally bound by allegiance and subjection to the government and law of the land.”

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James Kent, Commentaries on American Law (1826)

“That provision in the constitution which requires that the president shall be a native-born citizen (unless he were a citizen of the United States when the constitution was adopted) is a happy means of security against foreign influence,…A very respectable political writer makes the following pertinent remarks upon this subject. “Prior to the adoption of the constitution, the people inhabiting the different states might be divided into two classes: natural born citizens, or those born within the state, and aliens, or such as were born out of it.”

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St. George Tucker, Blackstone’s Commentaries (1803)

“Allegiance is nothing more than the tie or duty of obedience of a subject to the sovereign under whose protection he is, and allegiance by birth is that which arises from being born within the dominions and under the protection of a particular sovereign. Two things usually concur to create citizenship: first, birth locally within the dominions of the sovereign, and secondly, birth within the protection and obedience, or, in other words, within the allegiance of the sovereign….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 [the date the British occupied New York], 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.”

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Amy v. Smith, 11 Ky. 326, 340 (Ky. 1822)

“The country where one is born, how accidental soever his birth in that place may have been, and although his parents belong to another country, is that to which he owes allegiance. Hence the expression natural born subject or citizen, & all the relations thereout growing. To this there are but few exceptions, and they are mostly introduced by statutes and treaty regulations, such as the children of seamen and ambassadors born abroad, and the like.”

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Leake v. Gilchrist, 13 N.C. 73 (N.C. 1829)

“Therefore every person born within the United States, its territories or districts, whether the parents are citizens or aliens, is a natural born citizen in the sense of the Constitution, and entitled to all the rights and privileges appertaining to that capacity.”

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William Rawle, A View of the Constitution of the United States, pg. 86 (1829)

“From the close of the revolutionary war to the time of the adoption of the constitution of the United States, all persons born in this country became citizens of the respective States within whose jurisdiction they were born, by the rule of the common law, unless where they were prevented from becoming citizens by the constitution or statutes of the place of their birth.”

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The Law Library, Vol. 84, pg. 50 (1854)

“The common law principle of allegiance was the law of all the States at the time of the Revolution and at the adoption of the Constitution, and, by that principle, the citizens of the United States are, with the exceptions before mentioned, such only as are either born or made so, born within the limits and under the jurisdiction of the United States or naturalized by the authority of law, either in one of the States before the Constitution or, since that time, by virtue of an act of the Congress of the United States. The right of citizenship never descends in the legal sense, either by the common law or under the common naturalization acts. It is incident to birth in the country, or it is given personally by statute. The child of an alien, if born in the country, is as much a citizen as the natural born child of a citizen, and by operation of the same principle…. But the law of France rejects the principle of the English law, and of our own laws, that birth within the limits and jurisdiction of France, makes a Frenchman, or a natural-born citizen or subject of France, absolutely,…”

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January 28, 1838, Acts of the State of Tennessee passed at the General Assembly, pg. 266 (1838)

“The term citizen, was used in the constitution as a word, the meaning of which was already established and well understood. And the constitution itself contains a direct recognition of the subsisting common law principle, in the section which defines the qualification of the President… The only standard which then existed, of a natural born citizen, was the rule of the common law, and no different standard has been adopted since. Suppose a person should be elected President who was native born, but of alien parents, could there be any reasonable doubt that he was eligible under the constitution? I think not. ”

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Lynch vs. Clarke (NY 1844)

“Every person, then, born in the country, and that shall have attained the age of thirty-five years, and been fourteen years a resident within the United States, is eligible to the office of president.”

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Andrew White Young, First lessons in Civil Government, pg. 82 (1856).

“The first section of the second article of the Constitution uses the language, ‘a natural-born citizen.’ It thus assumes that citizenship may be acquired by birth. Undoubtedly, this language of the Constitution was used in reference to that principle of public law, well understood in this country at the time of the adoption of the Constitution, which referred citizenship to the place of birth.”

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Attorney General Bates, Opinion of Citizenship, (1862)

“All persons born in the allegiance of the king are natural-born subjects, and all persons born in the allegiance of the United States are natural-born citizens. Birth and allegiance go together. Such is the rule of the common law, and it is the common law of this country, as well as of England. There are two exceptions, and only two, to the universality of its application. The children of ambassadors are in theory born in the allegiance of the powers the ambassadors represent, and slaves, in legal contemplation, are property, and not persons.”

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Justice Swayne, United States v. Rhodes, 1 Abbott, US 28 (Cir. Ct. Ky 1866)

“In like manner every one who first saw the light on the American soil was a natural-born citizen ; but the power of naturalization, which, under the king, each colony had claimed to regulate by its own laws, remained under the confederacy with the separate states.”

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George Bancroft, History of the United States, from the Discovery of the American Continent: The American Revolution., pg. 439 (1866)

“Every person born within the United States, its Territories, or districts, whether the parents are citizens or aliens, is a natural-born citizen of the United States in the sense of the Constitution…Natural-born subjects are such as are born within the dominions of the crown of England; that is, within the ligeance, or, as it is generally called, the allegiance of the King; and aliens are such as are born out of it.” …… “It makes a man a subject in England, and a citizen here, and is, as Blackstone declares, ‘founded in reason and the nature of government’ … The English Law made no distinction … in declaring that all persons born within its jurisdiction are natural-born subjects. This law bound the colonies before the revolution, and was not changed afterward.”

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John Norton Pomeroy, Introduction to Municipal Law, pg. 419 (1865)

“As matter of law, does anybody deny here, or anywhere, that the native-born is a citizen, and a citizen by virtue of his birth alone?”

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There are many other such examples that can be offered, but significantly all of these quotations fall in the time between the Framing of the Constitution and the first (and only) comment by anyone of authority, Rep. John Bingham, who agrees with the Birther definition. They demonstrate an unbroken 80 years of consistent and unchallenged understanding that it was English common law and not continental European law (a la de Vattel) that defined natural born / native born / born citizenship in the Constitution of the United States of America.