Posted on 12/28/2011 5:34:17 PM PST by rxsid
"THE PUBLIUS ENIGMA: Newly Revealed Evidence Establishes That President James Madison’s Administration Required Citizen Parentage To Qualify Native-Born Persons For U.S. Citizenship.
I was recently forwarded an incredibly amazing article from the October 10, 1811 edition of The Alexandria Herald newspaper. RXSID of Free Republic sent it with a brief note, stating, “Check out this case.” The Herald article is entitled, The Case of James McClure. The author is…PUBLIUS.
Publius was the pseudonym used by Alexander Hamilton, James Madison, and John Jay, for their anonymous authorship of The Federalist Papers. By 1811, Hamilton was dead and Jay retired. My research leads me to believe that the article was written by James Madison, but this has not been conclusively established yet. Regardless of authorship, Madison was President at the time the article was written, and it discusses the official position of his administration denying U.S. citizenship based upon simple birth in the country.
The official position of the Madison administration was that persons born in the U.S. to alien parents were not U.S. citizens. This was the ruling concerning James McClure, despite the fact that his parents had been settled in the country for many years prior to his birth. The article makes clear that the United States Minister to France, General Armstrong, refused diplomatic protection for McClure by denying he was a citizen of the United States.
This was the official decision despite McClure having been born in South Carolina in 1785 to a father who was naturalized months later in 1786. Armstrong informed the French authorities that the man was not a U.S. citizen, and McClure was left in French custody. The article by PUBLIUS indicates that Armstrong might have mis-applied the 1802 Naturalization Act, but PUBLIUS also makes clear that McClure was not a citizen by virtue of his native birth in South Carolina:
There was no statute in South Carolina in 1785 which granted citizenship to persons born there similar to Virginia’s statute mentioned in the article by PUBLIUS. Simply being a “son of the soil” was not enough, and this evidence repudiates the contention that the British common law had been adapted in all of the states after the revolution. Since there was no statute in place making those born in South Carolina citizens, McClure was not held to be a native-born citizen. That argument was utterly rejected throughout the affair.
The article goes on to question whether the 1802 act is defective in that PUBLIUS seems to believe citizenship ought to be revoked for naturalized persons who return to their original country and establish domicile there again. But the article makes clear that Madison’s administration steadfastly denied that simple birth in the United States was enough to establish citizenship. This, of course, discredits the conclusions of Justice Horace Gray in U.S. v. Wong Kim Ark, as well as the infamous New York Chancery opinion of Lynch v. Clark. Both cases contain erroneous assumptions that the British common law rule of jus soli governed citizenship from the very genesis of the United States.
I tracked down the original article published in the Richmond Enquirer on October 1, 1811, which was then republished in The Alexandria Gazette on October 10, 1811. Both of these newspapers were published in Virginia, Madison’s home state. Furthermore, the PUBLIUS penned article was the grand finale of nearly a year-long argument which went viral in various newspapers of the day starting in January 1811.
I have been up and down the East Coast tracking down the remaining newspaper articles on this as well as other supporting historical information. I have also consulted with professionals and am preparing an extensive section for my forthcoming book which details everything that has been unearthed.
The whole story cannot be understood by way of online searches. The internet is barren on this case. Some of the necessary information isn’t even available in the Library of Congress or National Archives.
Here are the images from the Alexandria Herald and Richmond Enquirer. The Herald scan is much easier to read than the Enquirer scan.
Leo Donofrio, Esq."
A lot of people whom I argue with claim that Lynch v Clarke demonstrates that the basis of citizenship is English common law. Also, a lot of people quote James Madison's defense of William Smith as proof that we follow the English Common law on citizenship.
However, careful reading will show that this notion of following English Common law was just a habit in the absence of any knowledge of American law on whatever matter was before the court. As Madison himself said, if the State of South Carolina had a law decreeing who would be a citizen, it would have greatly simplified the matter. He is in fact saying, that a citizenship law of South Carolina would have decided the question, but in the absence of such a law, he turned to English Common law.
This is EXACTLY what the court said in Lynch v Clarke. Because New York did not have a law to determine who would be citizens of New York, the court decided to turn to English Common law. (They did not have to do so, they just chose to do so because that was their habit when dealing with any question before the court of which they knew of no governing law.) The New York State Legislature immediately responded to Lynch v Clarke by passing a law overturning the court's decision.
(All persons born in this state and domiciled within it except the children of transient aliens and of alien public ministers and consuls.)
That New York (and other states as well) could pass a law denying citizenship to the children of transient aliens demonstrates that English Common law was just a guide in the absence of positive American (or state) law. A place holder if you will.
I think this is the source of much confusion on the issue. English common law was the default position for those Judges who may have been unaware of the distinction between state and national citizenship, and the latter's foundation on natural law as described by Vattel.
As very few cases would revolve around the difference between state and national citizenship, it is easy to see how a correct understanding of the subject would be neglected in favor of more commonly applied law.
If you answer nothing else from me, answer this.
Do you think that Senator Howard,Representative Bingham, and Justice Gray knew the term “natural born citizen”?
You have given me an idea. I think in this coming year I am going to write to every senator and leading house member and the SC judges and basically ask them if I am a “natural born citizen”. I was born in Illinois to a family whose maternal blood line extends all the way back to the founding of Jamestown and before the founding of Germantown in Pennsylvania. However my father is a Canadian who was serving in the Canadian army during WWII. I think that puts me in the same situation as 0. I won’t mention him in my letter though and I’m very curious as to what answer they will be giving me if they do respond.
This is AWESOME!!!!!!!!!!!
Oh my gosh guys, guess what? Natural Born Citizenship was a HOT freaking topic in 1811! I thought that had not happened before (best feigned shock voice evah)! Gee, and by MADISON no less writing under his old “Publius” moniker he used with Jay and Hamilton!
All those arguments about how this was never discussed... and OMG NEVER before 1895(Second best feigned shock voice evah)!!!! This is complete and total 100% BS. Wong Kim Ark should be OVERRULLED. Gray’s actions (and his dicta in the case are demonstribly FAULTY, and the current court system is REFUSING to hear cases - with excuses of “Standing”?!!!??) What happened to hearing cases with regard to injustice and merit?? Gray’s decision, and his reasons for em should be SEVERELY examined, and further shoved up the current courts noses, blatantly and obnoxiously.
Grey wrote in the decision so deceptively, but he protected Arthur’s lack of Natural Born Citizenship, and thereby protected his OWN permanent place on the SCOTUS.
He did so because he was appointed by ARTHUR!!! The very man who GAVE HIM A SCOTUS SEAT was himself an unconstitutional POTUS, KNEW it and so he bought himself a SCOTUS judge. I can’t prove corruption here in the form of a check stubb, but darn if the pieces don’t fit. Gray had to have known.
Oooooo this is starting to look really ugly for the After-Birthers.... Obots beware, you have lost Madison and Agnew in just the last couple of weeks. You must be just besides yourself wondering what he is going to dig up next!!!! Ah to be a fly on the wall..... ;)
Leo is Brilliant is he not? Really, Look what this guy is doing for this Nation. He is giving us our HISTORY BACK! God Bless him and all he touches! AMEN!
We need to give this guy an award. I am so serious. What investigator is doing this. NONE! All the journalists today just follow the daily happenings... Are they getting trumped or what?
^ ^
[O.O}
( )?
Take a look see here! O.O Ping to thread :)
HAPPY NEW YEAR’S!!!!!!!!!!!!!!!1
There IS no lack of Law on the matter! There NEVER was! That is the whole myth you are selling.
The fact is, Natural Born Citizenship is NOT law derived from British Common Law any more than it was AMERICAN law!
It stems from NATURAL LAW.
Get it?
There is Natural Law, which is common to ALL countries! A Person being Born in country to PARENTS WHO ARE IT’S citizens! Law of NATURE bub. NATURALLY that kid is a citizen of that nation and can be nothing else! Or are you going to argue that rain is unnatural as well? Care to take on gravity too? Come on, I DOG dare anyone...
Then there is Statutory Law which is individual to what ever nation you are talking about. They are written and designed by men for specific purposes. Yes, I include common law in that.
Natural law is a statement of reality. Statutory Law is a statement of RULES that a given society wants to have and it creates! Like outlawing 100 watt lightbulbs for heavens sake (rolls eyes) Really? Yea, it is just that simple.
This old newspaper article PROVES, (yeah that means go read it) that this subject was WIDELY discussed in the newspapers of the day, and was taking up BIG chunks of the 4 page newspaper at times. It was huge... A big deal! Discussed! This story does not present as a fluffy bunny human interest story here.
Whether lower courts wrote this that or the other law is irrelevant, because SCOTUS would eventually take up a case which SPECIFICALLY defines the term “Natural Born Citizen”, and dozens of cases over 136 years still cite to it. It is standing law today, it set precident. Yeah, Minor v. Happersett.
Curiousier and curiousier said Alice... the naysayers are far quieter than usual (and sadly repetitive in arguments which are getting weaker and more pathetic by the hour...), Agnew, check. Madison, check... next?
:)
Really good idea! I hope others start to be as creative. Please let us know how it goes. The sooner we stop being so rigid in our thinking, that there is not another way to solve a problem than the conventional way, the sooner we will start overcoming! With the help of The LORD, of course.
If possible for you, could you please go into these and cut and paste to us the actual references. I think if these actual references were posted often it would help clear up the issue. Nothing like seeing something with our own eyes. Thank you.
The Constitution does not, in words, say who shall be natural-born citizens. Resort must be had elsewhere to ascertain that. At common-law, with the nomenclature of which the framers of the Constitution were familiar, it was never doubted that all children born in a country of parents who were its citizens became themselves, upon their birth, citizens also. These were natives, or natural-born citizens, as distinguished from aliens or foreigners. Some authorities go further and include as citizens children born within the jurisdiction without reference to the citizenship of their [p168] parents. As to this class there have been doubts, but never as to the first. For the purposes of this case it is not necessary to solve these doubts. It is sufficient for everything we have now to consider that all children born of citizen parents within the jurisdiction are themselves citizens.
From U.S. v Wong Kim Ark:
In Minor v. Happersett, Chief Justice Waite, when construing, in behalf of the court, the very provision of the Fourteenth Amendment now in question, said: "The Constitution does not, in words, say who shall be natural-born citizens. Resort must be had elsewhere to ascertain that."
Chief Justice Waite said: "Allegiance and protection are, in this connection" (that is, in relation to citizenship),
reciprocal obligations. The one is a compensation for the other: allegiance for protection, and protection for allegiance. . . . At common law, with the nomenclature of which the framers of the Constitution were familiar, it was never doubted that all children, born in a country of [p680] parents who were its citizens, became themselves, upon their birth, citizens also. These were natives, or natural-born citizens, as distinguished from aliens or foreigners. Some authorities go further, and include as citizens children born within the jurisdiction, without reference to the citizenship of their parents. As to this class, there have been doubts, but never as to the first. For the purposes of this case, it is not necessary to solve these doubts. It is sufficient for everything we have now to consider that all children born of citizen parents within the jurisdiction are themselves citizens.
Minor v. Happersett (1874), 21 Wall. 162, 166-168. The decision in that case was that a woman born of citizen parents within the United States was a citizen of the United States...
The fact is, Natural Born Citizenship is NOT law derived from British Common Law any more than it was AMERICAN law!
It stems from NATURAL LAW.
Get it?
You mistake me. I am not trying to convince anyone that American Citizenship law is based on English Common law. I absolutely believe it is a REJECTION of English "Subject" law. I am saying that the courts who have cited English Common law have done so out of ignorance and habit as opposed to having an actual understanding of the foundation of American law on Citizenship.
I believe those courts (and lawyers such as Rawles) which have made these mistakes, did so out of ignorance, not knowledge. As for James Madison's defense of William Smith, he was referring to a time period prior to the Constitution, so in that Example English Common law was the standard of the time frame.
To sum it up, I am on your side.
:) I can see you are! Sorry about that. It did let me discuss some relevant concepts that Obots really are worried about. Notice their absence to a pretty significant degree lately? They do not know what to do or say next. Interesting that!
I have been noticing it, but that can be taken two ways. One, that they don't know what to do anymore, or two, that they no longer think it is an issue worth discussing because they feel that it is over and they have won.
My position is that we should continue doing research for evidence that demonstrates the correct understanding of "natural born citizen" and distribute it out to the people. I've actually thought it would be nice if someone could do a professional style documentary on the topic. If done well enough, it might go viral.
Of course it is difficult to get people to pay attention to writing on old documents because that's just how supercilious we are nowadays.
So, from their writings and words, what did they think of "natural born"?
John Bingham said (speaking of the Civil Rights Act (prior to the writing of the 14th amendment)
which is simply declaratory of what is written in the Constitution, that every human being born within the jurisdiction of the United States of parents not owing allegiance to any foreign sovereignty is, in the language of your Constitution itself, a natural born citizen…Aha! some on the "natural born" threads say: "this means foreign parents are a disqualifier!" They look to further statements, such as
This will not, of course, include persons born in the United States who are foreigners, aliens, who belong to the families of ambassadors or foreign ministers accredited to the Government of the United States, but will include every other class of persons.and manage to misread. This statement does not say "children of foreigners" as a broad class, but rather specifically cites those "who belong to the families of ambassadors or foreign ministers." Common knowledge from history class is that foreign ambassadors and ministers are generally considered exempt from the local laws, hence they are not “under the jurisdiction of” their host government.
So what further clarification do the debates over the 14th amendment offer? Many of the NB'ers (shorthand for those who insist that the Founders used a Swiss author's definition rather than the English common law) like to point to Senator Trumbull's statement
T]he provision is, that 'all persons born in the United States, and subject to the jurisdiction thereof, are citizens.' That means 'subject to the complete jurisdiction thereof.' What do we mean by 'complete jurisdiction thereof?' Not owing allegiance to anybody else. That is what it means.but prefer to ignore a fuller explanation from Senator Trumbull [emphasis added]:
"The Senator from Missouri and myself desire to arrive at the same point precisely, and that is to make citizens of everybody born in the United States who owe allegiance to the United States. We cannot make a citizen of a child of a foreign minister who is temporarily residing here. There is a difficulty in framing the amendment [to the Act] so as to make citizens of all people born in the United States who owe allegiance to it. I thought that might perhaps be the best form in which to put the amendment at one time, 'That all persons born in the United States and owing allegiance thereto are hereby declared to be citizens;' but upon investigation it was found that a sort of allegiance was due to the country from persons temporarily resident in it whom we would have no right to make citizens, and that that form would not answer."Let us also look at what Representative Wilson said in these debates[emphasis added]:
Representative Wilson then goes on to quote William Rawle, early writer on Constitutional lawI think this issue is of sufficient importance to justify me in giving it more than a mere passing notice.
Blackstone says: “The first and most obvious division of the people is into aliens and natural-born subjects. 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, such as are born out of it. “
The principle laid down here applies to this country as well as to England. 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 Constitution of the United States recognizes the division of the people into the two classes named by Blackstone – natural born and naturalized citizens.
that must lead us to the conclusion that every person born in the United States is a natural born citizen of such states, except it may be children born on our soil to temporary sojourners or representatives of foreign governments, …
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.He also references Justice Gaston speaking in State v. Manuel, 4 Devereaux & Battle 25-26 (N.C., 1838):
The term “citizen” as understood in our law, is precisely analogous to the term subject in common law, and the change of phrase has entirely resulted from the change of government.So now we have some idea of what those debating the 14th amendment thought about "natural born" - that it was analogous to "natural born subject," that it excluded children of foreign diplomats, that it excluded those who owed only "a sort of allegiance was due to the country from persons temporarily resident in it whom we would have no right to make citizens."
Now, on to Justice Gray, who early on notes "The language of the Constitution, as has been well said, could not be understood without reference to the common law. " He goes on to quote (among others) that same North Carolina case, State v. Manuel, as well as Chancellor Kent, . Justice Gray describes the English common law:
Children, born in England, of such aliens were therefore natural-born subjects. But the children, born within the realm, of foreign ambassadors, or the children of alien enemies, born during and within their hostile occupation of part of the King's dominions, were not natural-born subjectsand quote Justice Story
"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."Justice Gray goes on to say
That all children born within the dominion of the United States of foreign parents holding no diplomatic office became citizens at the time of their birth does not appear to have been contested or doubted until more than fifty years after the adoption of the Constitution, when the matter was elaborately argued in the Court of Chancery of New York and decided upon full consideration by Vice Chancellor Sandford in favor of their citizenship. Lynch v. Clark, (1844) 1 Sandf.Ch. 583.Summing up, Justice Gray says
here 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.After further discussion of common law, French law, etc. he says
So far as we are informed, there is no authority, legislative, executive or judicial, in England or America, which maintains or intimates that the statutes (whether considered as declaratory or as merely prospective) conferring citizenship on foreign-born children of citizens have superseded or restricted, in any respect, the established rule of citizenship by birth within the dominion. Even those authorities in this country, which have gone the farthest towards holding such statutes to be but declaratory of the common law have distinctly recognized and emphatically asserted the citizenship of native-born children of foreign parents.I could go on, but it sure sounds like Justice Gray knew very well what "natural born" meant - the same thing it meant in English common law.
You have a touching and surprising amount of faith in the knowledge and judgment of politicians. Given your clear understanding of the all too evident human foibles and political hackery of SCOTUS, I wonder at your proclaiming the intelligence, ability, honesty and self disinterest it would take for the Congress to always behave as sensibly as you describe.
In fact, SCOTUS has ruled laws unconstitutional for violating that very prohibition against ex post facto laws and bills of attainder. See EX PARTE GARLAND, 71 U. S. 333 (1866) and UNITED STATES V. LOVETT, 328 U. S. 303 (1946) for examples. So a Congressman who did not understand ex post facto as well as he should proposed such a law, and as far as I can see it died in committee. If you have anything showing it went further than his proposal, please post.
Hello everybody,
I have a question about this article.
The conclusion seems to be that the Madison Administration required citizen parents for a child born in the US to be a citizen. I assume this is based on the actions of General John Armstrong Jr. and his refusal to recognize McClure’s citizenship. But the article says that Mr. McClure travel to France on a US passport issued by the American Minister in London (presumably William Pinkney). A passport “confessing him to be a native citizen of the U.S.”
So, did the US Minister in Great Britian recognize jus soli as the source of citizenship? But US Minister to France required jus sanjuinis and just soli?
...I could go on, but it sure sounds like Justice Gray knew very well what "natural born" meant - the same thing it meant in English common law.
I ask you for the time and you tell me how to build a clock! :)
Fine, I'll take it that you agree that All the parties involved in both the 14th amendment AND the Wong Kim Ark decision knew of the term "natural born citizen."
Then why didn't they use it?
So, did the US Minister in Great Britian recognize jus soli as the source of citizenship? But US Minister to France required jus sanjuinis and just soli?
It is something I am going to have to scrutinize before I can respond. It does however beg a different question. How did he get to Great Britain without a US Passport in the first place?
Don't have time right now, but tomorrow i'll look at it more closely, but it may be exactly as you have suggested. Lord knows that some people have been seemingly confused about this issue since the beginning. (1787)
“How did he get to Great Britain without a US Passport in the first place?”
He would have been 10 years old. And when he was born, his father was still a British subject. So by the English statutory laws, James would have been a British subject. So I guess he could have had a British passport. But when he needed to go to France, he would have needed a US passport (what with the Napoleonic Wars).
But there was another question I had from this article. It says that under the 1792 Law of Virginia “’all free persons born within the territory of this Commonwealth’ is deemed to be a citizen”. And goes on to say that in Virginia, the “alien, as well as a citizen, can beget a citizen”.
But the language of the 1792 Law is almost identical to the 1779 Virginia law (”that all white persons born within the territory of this commonwealth” are deemed to be citizens.) The 1779 law was drafted by Thomas Jefferson.
So was jus soli the law in Virginia from 1779 to 1792? It would appear so.
Probably because that wasn’t the question at hand in either case.
With regard to your quote from Story: Where is it from?
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