Newly Revealed Evidence-Madison Admin Req. Citizen Parents - Native-Born Persons

>p>With regard to your quote from Story: Where is it from?

Justice Gray in WKA quotes it, originally it is from Inglis v. Snug Harbor

Well, I suggest that you read for yourself Story's majority opinion in Shanks v. Dupont for yourself where he says that the common law of England to the Framers was mere municipal law and that in matters such as citizenship they looked to the law of nations. Your second hand quote, if Story's opinions are studied, misrepresets his position on point.

Well, I suggest that you read for yourself Story's majority opinion in Shanks v. Dupont for yourself where he says that the common law of England to the Framers was mere municipal law and that in matters such as citizenship they looked to the law of nations.

I read it. Your intrepretation is odd. The exact quote:

The incapacities of femes covert provided by the common law apply to their civil rights, and are for their protection and interest. But they do not reach their political rights nor prevent their acquiring or losing a national character. These political rights do not stand upon the mere doctrines of municipal law, applicable to ordinary transactions, but stand upon the more general principles of the law of nations.

If your read the rest of the case, Justice Story is stating the decision is based on treaty of 1783. He does not say the common law was to the Framers "mere municipal law." And like others, I fear you have fallen into the error of confusing a general body of law "law of nations" with a specific book, "Law of Nations" by Vattel.

If you really want to know what Justice Story thought of common law, you might read Commentaries on the Constitution of the United States from 1833. Selected passages:

§ 79. And so has been the uniform doctrine in America ever since the settlement of the colonies. The universal principle (and the practice has conformed to it) has been, that the common law is our birthright and inheritance, and that our ancestors brought hither with them upon their emigration all of it, which was applicable to their situation. The whole structure of our present jurisprudence stands upon the original foundations of the common law.

and

§ 855. It is observable, that the language is, that "the judicial power shall extend to all cases in law and equity," arising under the constitution, laws, and treaties of the United States. What is to be understood by "cases in law and equity," in this clause? Plainly, cases at the common law, as contradistinguished from cases in equity, according to the known distinction in the jurisprudence of England, which our ancestors brought with them upon their emigration, and with which all the American states were familiarly acquainted. Here, then, at least, the constitution of the United States appeals to, and adopts, the common law to the extent of making it a rule in the pursuit of remedial justice in the courts of the Union. If the remedy must be in law, or in equity, according to the course of proceedings at the common law, in cases arising under the constitution, laws, and treaties, of the United States, it would seem irresistibly to follow, that the principles of decision, by which these remedies must be administered, must be derived from the same source. Hitherto, such has been the uniform interpretation and mode of administering justice in the courts of the United States in this class of civil cases.

Your second hand quote, if Story's opinions are studied, misrepresets his position on point.

Argue with Justice Gray, as he quoted it in WKA; tell him he's misrepresenting Story's opinion.

"tomorrow i'll look at it more closely" Here is something else that I'm confused by. In the article, the author (Publius) says, "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". But James McClure was born in 1785 and his father naturalized in 1786. They would have been covered by the Naturalization Act of 1790. An act that James Madison helped write. It seems strange that if Madison wrote this article, he would not know that.

You quote the passage from Shanks v. Dupont in which Story plainly says that political rights, as opposed to the ordinary rights at common law come from the law of nations and then go on to ignore what he says. The "law of nations" was taught extensively at the time as distinct from the common law.

You then quote from his well known work on common law as to the application of common law and our practice of proceedign under it as our inheritance. Nowhere in his work on common law does he discuss citizaenship as being determined by the common law and you have not cited any such passage. Moreover the reason that Vattel gave his book the title was precisely because the law of nations was recognized as being different from the common law and thus sthe entire work is devoted to it. As Chief Justice Marshall, probably the only early Supreme Court Justice of greater prestige than Story said in the The Venus many of that day found Vattel the most satisfactory writer on the subject. Natural law was one subject and common law was another as taught in that day. You are confusing the fact that Vattel chose the subject for the title of his book with the subject. That is called sophistry.

Gray, in WKA, did not contradict Story in his opinion. WKA was after all an opinion written after the enactment of the 14th Amendment and was about citizenship or ordinary people, not Presidents, under the Amendment. To posit that WKA addressed the issue of the Article II eligibilty requirement, which was not an issue presented in the case, is to put words in Gray's mouth and is also sophistry. Gray understood what you refuse to understand, namely, that the 14th Amendment cut across the line of distinction between the two subjects with regard to those to whom it applied, leaving no need to refer to, and no room to refer to, the law of nations. An amendment becomes part of the Constitution with regard to that to which it does apply, which, in the case of the 14th Amendment, as recognized by SCOTUS in Schneider v. Rusk does not include the eligibilty clause of Title II. You are misrepresenting matters and sowing confusion.

What I am saying about the application of the law of nations to citizenship was made plain by the most prominent authority on common law in the fledgling United States at the time, St. George Tucker. And in his American edition of Blackstone, the most prominent work on Blackstone's common law commentaries of the time is evident in the post notes to his edition of Blackstone, which is available on line. His authority is taken note of by SCOTUS into recent times.

To sum it up. You misrepresent what you yourself quote because you do not take cognizance that in the discourse of that day the law of nations and the common law were two separate subjects within the law.

bttt...

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).

You have obviously studied this more than I have. I'll have to catch up before I can offer a sensible opinion.

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”.

Yes it does, with the provision that their parents remain in and reside in the state, as well as take an oath of loyalty. (In other words, "naturalize.")

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.

If you read it carefully, you will note that the 1792 law incorporates the 1779 law as well.

So was jus soli the law in Virginia from 1779 to 1792? It would appear so.

No, The law written by Thomas Jefferson was a jus sanguinus law. It is difficult to follow, but if you read it carefully it says the Father (or if dead, the mother) must be a citizen of Virginia in order for the Children to be a citizen of Virginia. Yes, they changed it in the 1792 law to allow for any children born in the Commonwealth to be automatically a citizen, but that is a change from the earlier 1779 law.

It is not remarkable, the states had the authority to set whatever requirements for citizenship of their state that they wished. Other States enacted rules that required someone to be citizen, or in the process of becoming a citizen in order for their children to be considered citizens. There is, of course, a distinction between State Citizenship and Federal Citizenship.

Probably because that wasn’t the question at hand in either case.

What an interesting dichotomy! You now say that neither the 14th amendment, nor Wong Kim Ark were addressing the issue of "natural born citizen" because that wasn't the question at hand. Wonderful! We are making progress.

Yes indeed it cannot be denied that both groups of people were well familiar with the term, but intentionally did not use it. I say intentionally because I do not believe they are so foolish as to omit it by accident. It was a conscious decision on their part to NOT use the term "natural born citizen." They used the term "citizen", which just as Article II itself demonstrates, means something different from "natural born citizen."

The lack of the use of the term "natural born citizen" is a glaring example of the "dog that did not bark."

"tomorrow i'll look at it more closely" Here is something else that I'm confused by. In the article, the author (Publius) says, "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". But James McClure was born in 1785 and his father naturalized in 1786. They would have been covered by the Naturalization Act of 1790. An act that James Madison helped write. It seems strange that if Madison wrote this article, he would not know that.

I was uneasy with the immediate pronouncement that "Publis" was necessarily James Madison. Just because he (and others) wrote under that pen name does not mean that everyone who writes under that pen name is he. I would like a bit more evidence nailing that down. I ran into exactly the same issue when I was referencing quotes from "CANDIDUS."

The issue with CANDIDUS is that this pen name was used by both Samuel Adams AND British Loyalist James Chalmers.

Even if subsequent efforts reveal it not to be James Madison, it is still historically significant evidence as pertaining to "natural born citizen" meaning and intent. It is much better if it comes from Madison, but it doesn't mean it should be dismissed if it isn't written by Madison.

"You have obviously studied this more than I have."

I'm just reading the newspaper article (Alexandria Herald) linked in the piece by Mr. Donofrio.

"No, The law written by Thomas Jefferson was a jus sanguinus law."

But both laws use the same language adjusted for the thirteen year time difference.

1779:

"Be it enacted by the General Assembly, that all white persons born within the territory of this commonwealth and all who have resided therein two years next before the passing of this act, and all who shall hereafter migrate into the same; and shall before any court of record give satisfactory proof by their own oath or affirmation, that they intend to reside therein, and moreover shall give assurance of fidelity to the commonwealth; and all infants wheresoever born, whose father, if living, or otherwise, whose mother was, a citizen at the time of their birth, or who migrate hither, their father, if living, or otherwise their mother becoming a citizen, or who migrate hither without father or mother, shall be deemed citizens of this commonwealth, until they relinquish that character in manner as herein after expressed”

1792:

"Be it enacted by the General Assembly, That all free persons born within the territory of this Commonwealth, all persons not being natives, who have obtained a right to citizenship under former laws, and all children wheresoever born, whose fathers or mothers are or were citizens at the time of the birth of such children, shall be deemed citizens of this Commonwealth, until they relinquish that character in the manner hereinafter mentioned."

So it would appear they made an adjustment for non-natives and removed the father has to be dead requirement for children born outside of Virginia. But beyond that, the two acts appear to be substantially the same.

"Even if subsequent efforts reveal it not to be James Madison, it is still historically significant evidence as pertaining to "natural born citizen" meaning and intent. It is much better if it comes from Madison, but it doesn't mean it should be dismissed if it isn't written by Madison."

Oh, I can certainly agree with that. The newspaper article tells us what some people believed in the early years of the country. I think the mistake people make is to lump the Founding generation together and think they all believed the same things. If that were the case, Hamilton and Jefferson would have actually liked each other.

Does this sound vaguely familar:

"The aspect of our politics has wonderfully changed since you left us. In place of that noble love of liberty and republican government which carried us triumphantly thro' the war, an Anglican, monarchical and aristocratical party has sprung up, whose avowed object is to draw over us the substance as they have already done the forms of the British government. The main body of our citizens however remain true to their republican principles, the whole landed interest is with them, and so is a great mass of talents. Against us are the Executive, the Judiciary, two out of three branches of the legislature, all of the officers of the government, all who want to be officers, all timid men who prefer the calm of despotism to the boisterous sea of liberty, British merchants and Americans trading on British capitals, speculators and holders in the banks and public funds a contrivance invented for the purposes of corruption and for assimilating us in all things, to the rotten as well as the sound parts of the British model. It would give you a fever were I to name to you the apostates who have gone over to these heresies, men who were Samsons in the field and Solomons in the council, but who have had their heads shorn by the harlot England." Thomas Jefferson, April 24, 1796, Letter to Phillip Mazzei

Your conclusion, with which I disagree. As does SCOTUS in Rogers v Bellei. The issue in WKA wasn't whether WKA could run for president, it was whether he was a citizen. WKA confirmed he was a citizen at birth - which several dictionaries define as "natural born".

Yes indeed it cannot be denied that both groups of people were well familiar with the term, but intentionally did not use it. I say intentionally because I do not believe they are so foolish as to omit it by accident. It was a conscious decision on their part to NOT use the term "natural born citizen." They used the term "citizen", which just as Article II itself demonstrates, means something different from "natural born citizen." The lack of the use of the term "natural born citizen" is a glaring example of the "dog that did not bark."

Firstly, you are trying to claim that because the word was not used, it did not apply. You have no actual evidence of this, and there is plenty of evidence to the contrary. In the 14th amendment debates, I quoted sections for you that made clear participants did mean "natural born" and many felt it was self evident that "born in the US" meant the same as "natural born" - see especially my quotes from Representative Wilson (usual diplomatic, etc. exceptions).

Justice Gray said

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.

Now what "ancient rule" do you think Justice Gray meant when he spoke of "birth within the dominion? Especially given the time he spent quoting sources on common law? Simply put, he quoted several cases and authorities on the subject of birth within the nation = natural born. And you'll notice that the dissent brought up the issue - that by this decision the child of an alien was eligible for the presidency.

Nowhere in the fourteenth amendment debates did I see someone maintain they would be citizens, but not natural born citizens. Nowhere did I see such divisions in citizenship beyond natural born and naturalized as you propose. If you have such evidence, present it. I don't think you can.

I'm just reading the newspaper article (Alexandria Herald) linked in the piece by Mr. Donofrio.

I read through some of it, but I didn't finish it. I'm at a point right now where I can only catch a snatch of time here and there.

"Be it enacted by the General Assembly, that all white persons born within the territory of this commonwealth and all who have resided therein two years next before the passing of this act, and all who shall hereafter migrate into the same; and shall before any court of record give satisfactory proof by their own oath or affirmation, that they intend to reside therein, and moreover shall give assurance of fidelity to the commonwealth; and all infants wheresoever born, whose father, if living, or otherwise, whose mother was, a citizen at the time of their birth, or who migrate hither, their father, if living, or otherwise their mother becoming a citizen, or who migrate hither without father or mother, shall be deemed citizens of this commonwealth, until they relinquish that character in manner as herein after expressed”

I believe I mentioned it was hard to read, but now that you have pointed it out to me it does appear to cite that as a distinguishing characteristic which is separate from the other qualifiers. It includes both jus soli and jus sanguinus components, but it does so in an either/or fashion rather than requiring both.

So it would appear they made an adjustment for non-natives and removed the father has to be dead requirement for children born outside of Virginia. But beyond that, the two acts appear to be substantially the same.

Yes, I agree. I was wrong earlier. After looking at it further, I also assumed you were talking about this 1783 Virginia law defining citizenship rather than the 1792 law of which I was unfamiliar.

Does this sound vaguely familar:

"... It would give you a fever were I to name to you the apostates who have gone over to these heresies, men who were Samsons in the field and Solomons in the council, but who have had their heads shorn by the harlot England." Thomas Jefferson, April 24, 1796, Letter to Phillip Mazzei

It sounds very much like Thomas Jefferson. It also sounds like what we are facing today. Socialism is just creeping Monarchy\Aristocracy with the Liberal "In" crowd as the Aristocrats. (I'm certain that's how they fancy themselves now.)

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Your conclusion, with which I disagree. As does SCOTUS in Rogers v Bellei. The issue in WKA wasn't whether WKA could run for president, it was whether he was a citizen.

If the Decision in Wong Kim Ark doesn't mean he can run for President then it also doesn't mean anyone in his similar circumstance can either.

WKA confirmed he was a citizen at birth - which several dictionaries define as "natural born".

Oh, so it is the authors of dictionaries who make our laws? Stuff and nonsense. If Justice Gray regarded Wong Kim Ark as a "natural born citizen" he would have said Wong Kim Ark was a "natural born citizen." I think he went as far as he could safely get away with by just claiming he was a "citizen."

Firstly, you are trying to claim that because the word was not used, it did not apply.

And to be contrary, you are implying that neither the Justices nor the members of Congress understood the difference.

You have no actual evidence of this, and there is plenty of evidence to the contrary. In the 14th amendment debates, I quoted sections for you that made clear participants did mean "natural born" and many felt it was self evident that "born in the US" meant the same as "natural born" - see especially my quotes from Representative Wilson (usual diplomatic, etc. exceptions).

This line of argument is rather amusing because Justice Gray himself said he would not concern himself with the intentions of the lawmakers but only upon what is actually written down. Well what is actually written down is just plain ole "citizen" and what is conspicuously absent is the term "natural born citizen."

You might recall that the Dred Scott decision was not so many years earlier, and that it specifically said it was not possible for blacks to be even citizens, because they were not a member of the original group for which the compact of our constitution was created. The fact that modern America rejects this notion does not change the fact that this belief was widely accepted at the time. Had the Congress used the term "natural born citizen" it would have implied that the former black slaves were of the same body of people as the original citizens, and that would have provoked a massive backlash against congress, even in the North.

In those days, miscegenation was regarded as intolerable, and an imprisonable offense. Even the suggestion was regarded as an intolerable insult. Congress was not stupid. They chose that term carefully, and for very good reason. It would not have passed one single state had it used the term "natural born citizen."

Now what "ancient rule" do you think Justice Gray meant when he spoke of "birth within the dominion? Especially given the time he spent quoting sources on common law? Simply put, he quoted several cases and authorities on the subject of birth within the nation = natural born. And you'll notice that the dissent brought up the issue - that by this decision the child of an alien was eligible for the presidency.

And as I pointed out to you, that might be the very reason why Justice Gray INTENTIONALLY did not use the term "natural born citizen." If he wanted to make it clear that Wong Kim Ark was qualified to be President, he could have done so by adding just two words to his decision. He. Did. Not.

Nowhere in the fourteenth amendment debates did I see someone maintain they would be citizens, but not natural born citizens. Nowhere did I see such divisions in citizenship beyond natural born and naturalized as you propose. If you have such evidence, present it. I don't think you can.

Nobody debates a fact which is incontestable. None of the Former slaves could possibly be "natural born citizens", only their subsequent offspring could. Also you have left out the category of "derived" citizenship. (Also not a form of "natural" citizenship.)

"I also assumed you were talking about this 1783 Virginia law defining citizenship rather than the 1792 law of which I was unfamiliar"

Yes, I was referring to the 1792 Act as that was the one mentioned in the newspaper article. 1792 and 1783 appear at first glance to be identical.

http://tinyurl.com/6q4mvcj

As to the Jefferson quote, when he refers to the "men who were Samsons in the field and Solomons in the council", he is referring to George Washington, Alexander Hamilton and John Adams.

And you are right, it sounds very much like today. In fact, many of the political debates occurring today sound like debates from the 1790's (Federalists v. Jeffersonian Republicans).

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?

Okay, I've had a chance to read it all the way through, and I think the correct answer is "neither". Mr. McClure possessed what is known as "derivative" citizenship. Many laws of the time automatically naturalized the wives and children of men who became a citizen. The Wife or Child need not take any affirmative action, their citizenship was automatically derived from that of the Husband or Father.

I believe the bone of contention was that the requirement for derivative citizenship was that the child must live in the United States.

I've read quite a bit regarding the concern of some founders that a child could get American Citizenship but be raised in a Foreign Country without real loyalty to the United States. (And later be elected to public office.) This Dwelling requirement was probably an effort to thwart that possibility.

Here is something else that I'm confused by. In the article, the author (Publius) says, "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". But James McClure was born in 1785 and his father naturalized in 1786. They would have been covered by the Naturalization Act of 1790. An act that James Madison helped write. It seems strange that if Madison wrote this article, he would not know that.

I think he is merely citing the most current version of the naturalization act. Even if it is not Madison, I would think that anyone with the degree of knowledge expressed in the Newspaper article would very likely know of the previous iterations of those laws.

"Many laws of the time automatically naturalized the wives and children of men who became a citizen."

While that is true, it doesn't appear to be a factor in this case. South Carolina laws did not have such a provision. As I read it, Gen. Armstrong refused to use the Naturalization Acts of the United States to declare James a citizen. He specifically requested a certificate from South Carolina,

"Gen. Armstrong would not interfere in his behalf – on the 16th 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 prove 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. Carolina naturalizing (his) father, provided that act naturalizes also the children of (his) father born before its own date.”

The Charge d’affaires Mr. Russell says that Gen. Armstrong did not believe that US Naturalization Laws applied to Mr. McClure.

“that Gen. A. not considering the law of the U.S. to embrace the case of Mr. McC. required that he show himself to be within the provisions of the state statue: That the words if dwelling in the U. S. appear to occasion the whole difficulty in deciding the rights of Mr. McC.”

Apparently, Gen. Armstrong did not accept the idea that “if dwelling in the U.S.” meant at the time of the naturalization of the father.

But that still doesn't explain how he got a passport from the United States Minister in London. And why it was described as "confessing him to be a native citizen of the U.S."