Posted on 03/05/2010 4:25:45 AM PST by Spaulding
Here. From Section IV:
V. It was contended by one of the learned counsel for the United States that the rule of the Roman law, by which the citizenship of the child followed that of the parent, was the true rule of international law, as now recognized in most civilized countries, and had superseded the rule of the common law, depending on birth within the realm, originally founded on feudal considerations.
But at the time of the adoption of the Constitution of the United States in 1789, and long before, it would seem to have been the rule in Europe generally, as it certainly was in France, that, as said by Pothier, “citizens, true and native-born citizens, are those who are born within the extent of the dominion of France,” and
mere birth within the realm gives the rights of a native-born citizen, independently of the origin of the father or mother, and of their domicil;
and children born in a foreign country, of a French father who had not established his domicil there nor given up the intention of returning, were also deemed Frenchmen, as Laurent says, by “a favor, a sort of fiction,” and Calvo, “by a sort of fiction of exterritoriality, considered as born in France, and therefore invested with French nationality.” Pothier Trait des Personnes, pt. 1, tit. 2, sect. 1, nos. 43, 45; Walsh-Serrant v. Walsh-Serrant, (1802) 3 Journal du Palais, 384; S.C., S. Merlin, Jurisprudence, (5th ed.) Domicile, § 13; Prefet du Nord v. Lebeau, (1862) Journal du Palais, 1863, 312 and note; 1 Laurent Droit Civil, no. 321; 2 Calvo Droit International, (5th ed.) § 542; Cockburn on Nationality, 13, 14; Hall’s International Law, (4th ed.) § 68. The general principle of citizenship by birth within French territory prevailed until after the French Revolution, and was affirmed in successive constitutions from the one adopted by the Constituent Assembly in 1791 to that of the French Republic in 1799. Constitutions et Chartes, (ed. 1830) pp. 100, 136, 148, 186. [p667] The Code Napoleon of 1807 changed the law of France and adopted, instead of the rule of country of birth, jus soli, the rule of descent or blood, jus sanguinis, as the leading principle; but an eminent commentator has observed that the framers of that code
appear not to have wholly freed themselves from the ancient rule of France, or rather, indeed, ancient rule of Europe — de la vielle regle francaise, ou plutot meme de la vielle regle europienne — according to which nationality had always been, in former times, determined by the place of birth.
1 Demolombe Cours de Code Napoleon (4th ed.) no. 146.
The later modifications of the rule in Europe rest upon the constitutions, laws or ordinances of the various countries, and have no important bearing upon the interpretation and effect o the Constitution of the United States. The English Naturalization Act of 33 Vict. (1870) c. 14, and the Commissioners’ Report of 1869, out of which it grew, both bear date since the adoption of the Fourteenth Amendment of the Constitution; and, as observed by Mr. Dicey, that act has not affected the principle by which any person who, whatever the nationality of his parents, is born within the British dominions, acquires British nationality at birth and is a natural-born British subject. Dicey, Conflict of Laws 41. At the time of the passage of that act, although the tendency on the continent of Europe was to make parentage, rather than birthplace, the criterion of nationality, and citizenship was denied to the native-born children of foreign parents in Germany, Switzerland, Sweden and Norway, yet it appears still to have been conferred upon such children in Holland, Denmark and Portugal, and, when claimed under certain specified conditions, in France, Belgium, Spain, Italy, Greece and Russia. Cockburn on Nationality, 14-21.
There is, therefore, little ground for the theory that, at the time of the adoption of the Fourteenth Amendment of the Constitution of the United States, there as any settled and definite rule of international law, generally recognized by civilized nations, inconsistent with the ancient rule of citizenship by birth within the dominion. [p668]
THERE is more on this, but this is the nub. The Wong Court was presented, in effect, with the Vattel stuff. It didn’t fly then. It won’t fly now, IMHO.
parsy, who says it all begins with WONG
Not at all, the law, even the Constitution, can be changed by those to whom it applies. Thus they are the sovereigns.
Of course it's not really that simple, not even in England in the 17th and 18th century. By then even the English Kings and Queens were not absolute monarchs.
No one is arguing that persons born in the US are not citizens at birth, which was what Wong was about. All that foreign law either says the same thing, or says they are Natural born *subjects*. Citizens and subjects are not the same thing.
As we know from history, sovereigns can also be changed by their subjects.
bump
Only outside the law, not within it.
El Gato, have you seen pansy’s slapdown?
Hey pansy, this is a BC thread and you’re posting on it.
Check the time.
Corrected myself after I posted.
Ha ha.
The Wong Kim Ark holding cannot be relied upon to define an Article II “natural born Citizen.” Defining what an Article II “natural born Citizen” is depends upon what the Framers intended that clause to mean in 1787. The Framers defined national citizenship during the Founding in the historical context of the American Revolution, a context which did not exist in 1898. In that context, the Founders had to provide for who were the original citizens and who were their descendents. To define these terms, the Framers relied upon the same law that justified the Revolution itself. That law was natural law and the law of nations and not the English common law. From that law, they came to call the original citizens “citizens of the United States” and their descendents, the “natural born Citizens.” The Framers then gave Congress the power to naturalize all other persons who may in the future also qualify to be “citizens of the United States.” Under natural law and the law of nations as commented upon by Vattel, whom the Framers relied upon to explain that law, this meant that only the children of citizens (either “natural born Citizens” or naturalized) could ever be “natural born Citizens.” All other citizens would only be “citizens of the United States.”
Wong Kim Ark dealt with defining what a Fourteenth Amendment “citizen of the United States” was in 1898. Justice Gray’s general statements in Wong Kim Ark as to what a “natural born subject” (which under English common law also included naturalized subjects) was in the colonies under English common law before the Revolution which he made for the purpose of defining a “citizen of the United States” in 1898 do not answer the question of what the Founder’s definition of an Article II “natural born Citizen” was in 1787. In fact, given the Revolution and the need to constitute a new society, to the Framers the English common law was neither relevant nor useful in providing that definition. Justice Gray’s decision can at best be used to define what an original citizen was before the adoption of the Constitution which definition he used to justify his declaring Wong a Fourteenth Amendment “citizen of the United States.” But it cannot be used to define what a “natural born Citizen” is following its adoption.
Professional trolls like the fool in post 14 will just change their name and continue being professional trolls.
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