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."
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.
Let's look at what St. George Tucker had to say:
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...Note Tucker's use of "native born" interchangeably with "natural born." Or will you argue that "native born" means something other than "born in the country"? Or how about [emphasis added]
An alien in America, antecedent to the revolution, was entitled to all the rights and privileges of an alien in England, and many more; to all that an alien in England could claim, because, as has been remarked elsewhere, the common law of England and every statute of that country made for the benefit of the subject, before our ancestors migrated to this country, were, so far as the same were applicable to the nature of their situation, and for their benefit, brought over hither by them; and wherever they are not repealed, altered, or amended by the constitutional provisions, or legislative declaration, of the respective states, every beneficial statute and rule of the common law still remains in force.
Where in WKA does it say he couldn't run for president? In fact, the dissent brought up the fact that this decision meant he could run for president.
Oh, so it is the authors of dictionaries who make our laws?
Strawman argument. One of the most commonly used legal dictionaries in the US gives us common legal definitions.
And to be contrary, you are implying that neither the Justices nor the members of Congress understood the difference.
Perhaps you should read my post again - where I gave you several quotes. Rep Wilson was quite clear on this,
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, …Pretty straightforward.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.
Since the case wasn't about whether WKA was qualified to be president, there is no surprise about it. The case was about whether he was a citizen. I haven't seen many citizenship cases where the court says "oh, incidentally, he can run for president."
To repeat what I said: "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." And you haven't.
What Tucker makes clear is that the concern was over dual loyalties in the adoption by the Framers of the phrase that they used, so that the historical occasions in Europe that he refers to where there were such dual loyalties, would not occur here. If you were familar as he was with that history you would not misrepresent matters in the way that you insist upon unless you were determined to arrive at a pre-ordained concluson regardless of the historical context. He is not saying in any way, writing as he was, long before the 14th Amendment was conceived, that "native born" in the sense that it came to mean not "naturalized" after the 14th Amendment is interchangeable with the constituional phrase. At the time he was writing for his 1804 edition of Blackstone, the 14th Amendmetn concept had not yet come into being as discussed in many cases after the 14th Amendment was adopted.
If the Framers had wanted to use "native born" they would have done so. The Dred Scott decision, which was law until repealed by the 14th Amendment made it clear that jus sanguinis prevailed from the Framing until that time. Representative Bingham of Ohio, the principal architect of the 14th Amendment stated in Congress explicitly as the Amendment went forward that it did not change the "natural born" requirement that a President must be born in this country of two citizen parents just as Marshall referred to in The Venus (1814).
What is at issue is what the Framers intended, not what Gray said after the 14th Amendment was adopted well after the Civil War and the ensuing concerns raised by the freeing of the slaves about someone who was an ordinary individual and not a presidential candidate.
The issue of the meaning of "natural born" in Article II was not in any way before him and could not have been decided by him and his court. You are extrapolating backwards where there is absoultely no justification for doing so.
No Framer of the Constitution, and no one who voted for its adoption indicated in any way that "natural born" in Article II meant anything other than its accepted meaning under the law of nations as universally taught in America at the time. This is reflected also in all the legal dictionaries in use in this country as that time as well as being reflected in the langauge used by John Jay in his well known letter to Washington before the phrase was adopted. Washington, Jay, and the majority of the Framers were familiar with Vattel and his description of what the phrase meant. There were several English translations of Vattel's book before the drafting of the Constitution and Vattel was discussed right along with Locke and a few others who were featured in much of the discussion of the time.
You keep insisting on distorting ordinary word as well understood by all Americans at the time of our Founding. Citizen and subject are two different very ordinary words. That Americans who were "subjects" of the king of England was the excuse used by the British, by the way, to impress our seamen which became one of the causes of the War of 1812 which led to the "consolidation" of our Revolution. That a bloody war resulted shows how firm the distinction was between a citizen of a Republic versus the subject of a monarchy in our minds. The law of monarchical subjects did not survive the adoption of the Constitituion, as Tucker makes clear as concerns the situation of citizenshhip, where, as Story made clear, the law of nations prevailed. Where the common law came over, with regard to such things as the law of trespass upon property, was not part of the law of nations and was not barred by our Constitution. As Tucker makes clear the reqquirements in our Constituton for presidential eligibility are far different from the requirements imposed upon monarchs under the common law of England. Our presidential eligibility requirements, he makes clear, are completly unlike those that an English king must meet.
“I think he is merely citing the most current version of the naturalization act.”
That may be case but he would surely know that the 1802 law would have no bearing on McClure. His status was decided by the act of 1790 or even 1795. It strikes as very imprecise for someone as precise as James Madison.
“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.”
It’s not almost identical, it is exactly identical because you have failed to realize that you are quoting the same exact law - the Virginia law. The article does not say there was a South Carolina law in 1792. There was no such law. Publius points out that South Carolina has no such law as Virginia had, hence McClure required naturalization. Publius argues that McClure was naturalized, not when his father was born, but in 1802 when the new naturalization law was passed.
See my response below to your question re the 1790 act.
“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.”
Of course Madison knew about the 1790 law, but he also knew something you do not appear to know. He knew that the 1790 act did not include a provision making the children of persons naturalized by the states prior to the US Constitution to be citizens themselves.
James McClure was not naturalized by the 1790 act.
The act in force in 1810 was the act of 1802 which does provide that children of persons naturalized by a state prior to any such law enacted by the US Government are themselves ctizens “if dwelling” in the US. Publius explains that Armstrong misconstrued this part of the 1802 act. Publius states that “if dwelling” in the US means the child must have been dwelling in the US when the parent was naturalized by the state in question. Armstrong applied it to mean that the person must be “dwelling” in the US at all times to be a citizen.
Unfortunately for McClure, Minister Armstrong’s sentiment was echoed by Charge D’Affairs Russell and Consul McRae.
The 1790 act only provided for the children of persons naturalized under that act, it did not provide for the children of persons naturalized by a state prior to that act. Publius corrects Armstrong. But Publius doesn’t like the law as written. He would like to agree with Armstrong but, as he says, he must accept the law as written and not supply his vision of what ought to be. I would not be surprised that Madison should have seen to McClure being released based upon his being a naturalized US citizen.
“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. “
I like your style, AV. “I like your moves.” :)
“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.”
The point to be taken from the article is that nothing was certain as to citizenship back in 1810. The US Minister to France, his Consul and Charge D’Affaris all denied that McClure was a US citizen. The passport granted by the US official in England was revoked by Armstrong.
Most important is the fact that Justice Gray’s allegation in Wong Kim Ark, that the general rule or “ancient rule” as he calls it, of the common law of England was uniformly accepted as the law of the US, turns out to be utter bunk.
Gray’s soothing mantra of “this is the way it’s always been” is false. There was massive institutional confusion and nothing was settled law on this point.
“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.”
My first reply on this point mistook your question as to have stated that there was a 1792 act in South Carolina similar to the 1779 Virginia act. Apologies. I see now you were referring to both the 1779 and 1792 acts of Virginia.
ma bad... im grumpy before my morning coffee :)
From my reading, it was customary and common practice even though it may not have been specifically codified. When a woman married a man, she was regarded as having taken on his citizenship as well. Same thing with his children. In those days, the rights or wishes of Women and Children were often of little concern to the manner in which the law was administered. It wasn't until 1854 that Congress got around to actually codifying the practice into law.
I would suggest the reason he wanted a statute from South Carolina was because it would clarify the naturalization requirements of South Carolina, and thereby demonstrate compliance with the grandfather like requirements of the 1802 act establishing U.S. citizenship. Obviously an American official would look none to pleased at the prospect of a child having left the country when he was young, and living a substantial part of his years in England rather than in his own nation. I guess the General is not accepting the automatic naturalization of children as the common practice which it was at the time and wants to see if the statute specifically codifies it.
All of this just indicates the General believes Mr. McClure might technically possesses American citizenship, but in actuality has more loyalty to England than he does to the U.S.; A serious concern during the leadup to the 1812 war.
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.
Yup. That's how I see it as well.
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."
I would suppose that he went to the U.S. Embassy in London, presented his father's proof of naturalization, and used that to get a passport for himself. As for the use of the term "native citizen", in those days the terms were virtually interchangeable, unlike the manner in which we distinguish them today. The words native, natural, natal, nativity and nation all share the same root word . The original root word for all three was "gnasci"which is also the root word for Genus. The French word for Nation is "Gens" as in "Droit des Gens." Here is a page I found from the most commonly used dictionary from the founding era. (Samuel Johnson's A Dictionary of the English Language (1755) ) Look at the definition of the word "Nation."
It says so by the glaring omission of those two qualifying words; "Natural born."
Strawman argument. One of the most commonly used legal dictionaries in the US gives us common legal definitions.
The fallacy in relying on it is that it's definitions work for 99.99% of all the cases, but they were never meant to deal with the 0.0001% of the time when someone might misapply them to the eligibility requirements for the Presidency. It is like the difference between Isaac Newton's Classical physics equations and Einstein's General relativity. For 99.99% of all physics questions, Newton's equations work just fine. They only break down under extreme circumstances, during which we have to switch to Einsteins equations. Newton isn't wrong, he just doesn't go far enough in his explanations.
Perhaps you should read my post again - where I gave you several quotes. Rep Wilson was quite clear on this,
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, …
I actually like this quote. It clearly identifies Barack Obama, (a child born of a temporary sojouner) as not meeting the requirements for 14th amendment citizenship. According to this quote, Barack is not even a CITIZEN, let alone a "natural born citizen."
Since the case wasn't about whether WKA was qualified to be president, there is no surprise about it. The case was about whether he was a citizen. I haven't seen many citizenship cases where the court says "oh, incidentally, he can run for president."
If the case does not establish that he is able to meet the "natural born citizen" requirements, then why do people such as yourself keep asserting that it does? It either does or it doesn't.Why don't you pick which ever side you wish to believe and stick with it? One or the other if you please.
Either Wong Kim Ark proves that he can run for President, or it does not. My argument is that it does not, which seems to be the same thing that you are currently arguing above. If you agree, then you will have to find another basis to argue that a 14th amendment "citizen" is the same thing as a "natural born citizen." The absence of those two words "natural born" from both Wong Kim Ark and the 14th amendment demonstrate that they were never intended to be regarded as the same. With all the excessive Verbiage in the 14th amendment, you would think they would have had room for two more words if they intended that they should be in there.
They are not because they did not.
How can you say the act of 1802 doesn't apply? Doesn't it say this:
SEC 4 And be it further enacted That the children of persons duly naturalized under any of the laws of the United States or who previous to the passing of any law on that subject by the government of the United States may have become citizens of any one of the said states under the laws thereof being under the age of twenty one years at the time of their parents being so naturalized or admitted to the rights of citizenship shall if dwelling in the United States be considered as citizens of the United States
If South Carolina had a naturalization/citizenship law prior to the Naturalization act of 1790, it would cause the act of 1802 to apply, or am I missing something?
Gray’s soothing mantra of “this is the way it’s always been” is false. There was massive institutional confusion and nothing was settled law on this point.
I agree that it certainly wasn't settled in the Direction Gray chose to decide. In deliberating the case, Gray overlooked the Elephant in the room which was the War of 1812. No objective judge could have overlooked the role the War of 1812 played in assertively rejecting English Common law definitions of "subjectude." A more vehement rejection I cannot fathom.
That many people were confused, is obvious. I personally think the Founders and authors of Article II were not at all confused, but whether others understood their meaning and intent seems to be a patchwork. Some did, others did not. (Rawles for example.) This quote from Attorney-General Black, explains quite well how this confusion was spread, in my opinion.
Attorney-General Black, whose opinion of July 4, 1859, concerning the case of Christian Ernst, a naturalized American citizen of Hanoverian origin who was arrested upon his return to Hanover, has become a classic on this subject.
“The natural right of every free person, who owes no debts and is not guilty of any crime, to leave the country of his birth in good faith and for an honest purpose, the privilege of throwing off his natural allegiance and substituting another allegiance in its place—the general right, in one word, of expatriation—is incontestible. I know that the common law of England denies it; that the judicial decisions of that country are opposed to it; and that some of our own courts, misled by British authority, have expressed, though not very decisively, the same opinion. But all this is very far from settling the question. The municipal code of England is not one of the sources from which we derive our knowledge of international law. We take it from natural reason and justice, from writers of known wisdom, and from the practice of civilized nations. All these are opposed to the doctrine of perpetual allegiance. It is too injurious to the general interests of mankind to be tolerated; justice denies that men should either be confined to their native soil or driven away from it against their will.”
My argument has been pretty consistent. If an interpretation of the law does not accomplish the intended purpose of the law, then the interpretation is incorrect.
A strictly Jus Soli interpretation of article II, DOES NOT accomplish the purpose for which that article was created.
And you persist in misunderstanding. Many court cases, many scholars, have said that we follow the English common law in this. For instance, Rep Wilson during the 14th amendment debates quotes a court case
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.
As the passage you quote points out where a Constitution changes the common law the common law yields.
And Just where did the Constitution change the common law with regard to natural born? It didn’t.
The reference to "native born" where Tucker discusses loyalty does not alter the constitutional phrase; it refers to it. The constitutional phrase remains "natural born." .
You are really working hard at misunderstanding. Tucker makes clear that “native born” and “natural born” are synonymous. Therefore “born on the soil” (usual diplomatic exceptions) means natural born. You espoused Tucker as definitive on citizenship – there you have his opinion. Or do you know not like it so much now that it contradicts what you want to believe?
What Tucker makes clear is that the concern was over dual loyalties in the adoption by the Framers of the phrase that they used, so that the historical occasions in Europe that he refers to where there were such dual loyalties, would not occur here. If you were familar as he was with that history you would not misrepresent matters in the way that you insist upon
Who is ignorant and who is misrepresenting? Tucker (and others) speak of foreign influence and Tucker specifically mentions the Dutch revolt.
If you look it up, you will see that Holland was ruled for a time by Spaniards, appointed statholders by Spain, and the office – as Tucker mentions – became hereditary. So his (and other Founder’s) concerns were not for those born of foreigners on US soil, who are US citizens, but for foreigners who are not, who may be naturalized only for that purpose. See what Joseph Story has to say on this:
It cuts off all chances for ambitious foreigners, who might otherwise be intriguing for the office; and interposes a barrier against those corrupt interferences of foreign governments in executive elections, which have inflicted the most serious evils upon the elective monarchies of Europe. Germany, Poland, and even the pontificate of Rome, are sad, but instructive examples of the enduring mischiefs arising from this source.This is well explained by Alexander Hamilton in the Federalist Papers #68
these most deadly adversaries of republican government might naturally have been expected to make their approaches from more than one querter, but chiefly from the desire in foreign powers to gain an improper ascendant in our councils. How could they better gratify this, than by raising a creature of their own to the chief magistracy of the Union?Showing that the chief concern was not US citizens born of foreign immigrants, but rather concern about foreign governments trying to insert their own officials into the US government.
If the Framers had wanted to use "native born" they would have done so.
Many used the two interchangeably (as I showed quoting Tucker above) so why would they say both?
Representative Bingham of Ohio, the principal architect of the 14th Amendment stated in Congress explicitly as the Amendment went forward that it did not change the "natural born" requirement that a President must be born in this country of two citizen parents just as Marshall referred to in The Venus (1814).
Please give the citation where Bingham says exactly that.
What is at issue is what the Framers intended,
Two points: first, you said you accepted Tucker as an authority. Tucker says “native born” and “natural born” are synonymous. Second: the issue right now is what the law is now. The Framers did not allow for the idea of a woman president – do you think Michelle Bachmann would have been disqualified had she won?
The issue of the meaning of "natural born" in Article II was not in any way before him and could not have been decided by him and his court. You are extrapolating backwards where there is absoultely no justification for doing so.
You might enjoy discussing that with Diogenes Lamp and Edge, both of whom think it was before him and that he decided “no”. It was not the issue before him, but from his opinion, it is clear that he felt WKA was natural born, because he speaks of the US law as derived from English common law. As for “extrapolating backwards” tell that to the SCOTUS justices who have cited WKA.
No Framer of the Constitution, and no one who voted for its adoption indicated in any way that "natural born" in Article II meant anything other than its accepted meaning under the law of nations as universally taught in America at the time.
Ah, that is where you are wrong, and are not producing sufficient evidence. Many terms in the Constitution come from English common law – see what Justice Scalia has to say about this. And while the Founders knew Vattel’s work, they relied on Blackstone a whole more.
The law of monarchical subjects did not survive the adoption of the Constitituion, as Tucker makes clear as concerns the situation of citizenshhip, where, as Story made clear, the law of nations prevailed.
I have shown you what Tucker thinks - that “natural born” and “native born” are synonyms. I have shown what Justice Story said:
"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."You don’t like it, so you are trying to obfuscate and insult your way out of it.
I didn’t want to ping you to the whole long post, but I mention you in the 7th paragraph up from the bottom of post 154. AV maintains that WKA did not any way deal with Natural Born. Edge, in particular usually maintains that he did.
“[I] find no fault with the introductory clause [S 61 Bill], 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…. . . ”
Source – John Bingham in the United States House on March 9, 1866 (Cong. Globe, 39th, 1st Sess., 1291 (1866))
Many such as yourself who don't like the truth of these matters seek to counter this clear statement in which "not owing allegiance to any foreign sovereignty" is very clear langauge by misrepresenting what others involved in the passage of the 14th Amendment and attacking Bingham despite his distinguished career and respected gift for oratory on the House floor. So let us examine some of what others involved said at the time.
Here is what Senator Trumbull had to say:
Senator Trumbull: “The 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.”
Congressional Globe, Senate, 39th Congress, 1st Session Page 289
Rep. Wilson, the house judiciary committee chairman of such Congress,said this:
“It is in vain that we look into the Constitution of the United States for a definition of the term “citizen.” It speaks of citizens, but in no express terms defines what it means by it. We must depend on the general law relating to subjects and citizens recognized by all nations for a definition, and 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 that children born to temporary sojourners or representatives of foreign Governments, are native-born citizens of the United States.”
The phrase "recognized by all nations" is clearly a reference to the law of nations not to common law.
Congressional Globe, House of Representatives, 39th Congress, 1st Session Page 1117.
Note “temporary sojourners.” That is what Mr. Obama Sr was. So you see that Rep. Wilson was making the clear distinction between "natural born": as used in the Constitution and "native born" as dealt with in the 14th Amendment that you refuse to acknowledge. At the time of the 14th Amendment the distinction was clear to those who were involved.
Let us now look again at what Justice Story said in Shanks v. Dupont. Here are his words:
It does not appear to us that her situation as a feme covert disabled her from a change of allegiance. British femes covert residing here with their husbands at the time of our independence and adhering to our side until the close of the war have been always supposed to have become thereby American citizens and to have been absolved from their antecedent British allegiance. 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. Those 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.
Thus you see what Story plainly says. Common law governs civil rights but political rights and acquiring and governing a national character, which is to say citizenship, are governed by the law of nations which is more general than the common law.
Blackstone himself recognized that the law of nations was more general than and not the same as the common law. He observed in his commentaries that while offenses against the law of nations were "principally incident to whole states or nations ...where the individuals of any state violate this general law, it is then the intersst as well as the duty of the government under which they live, to animadvert upon them with a becoming severity, that the peace of the world may be maintained." 4 BL COMM. 68 (1st ed. 1765-1769). This is why Chief Justice Waite, in Minor said that at common law it was in "doubt" that anything beyond someone born in the country of two citizen parents was a "natural born citizen." Common law recognized that the law of nations was a separate subject that was not the common law though even in England it co-existed with the common law as it did here and does here.
You have not shown that Tucker regarded "native born" as being the same as the phrase "natural born" in the Constitution so as to have the constitutonal phrase not refer to what Vattel called indigenes, a word that became cognate in our English at the time because of the popularity of his writings among the founders as you will see in the quote from John Marshall further on. That Tucker used "native" as he did does not change the intent of the Founders in using "natural" even though the two words mean the same in many respects. Certainly the phrase "natural born" chosen in 1787 was precisely chosen and does not because of its similarity to "native born" as used in more general discussion equate to what was meant by "native" in post-14th Amendment cases about 14th Amendment citizenship after the Civil War during Reconstruction. In fact the passage you quote shows that like Senator Trumbull years later, Turner understood that the constituional phrase barred other than complete allegiance, which was the Founders' concern. Complete allegiance was particularly important with regard to the father given the status of women at the time. Further "complete allegiance" was clearly more part of the intent at the time of the drafting of the body of the Constitution than it was when Senator Trumbull was speaking of the concept.
You seem to engage in misrepresentation and then when it is pointed out to you claim you are being insulted.
Here is what the great John Marshall said in The Venus in 1814:
The whole system of decisions applicable to this subject rests on the law of nations as its base. It is, therefore, of some importance to enquire how far the writers on that law consider the subjects of our power residing within the territory of another, as retaining their original character, or partaking of the nation in which they reside.
Vattel, who, though not very full to this point, is more explicit and more satisfactory on it than any other whose work has fallen into my hands, says:"the citizens are members of the civil society, bound to this society by certain duties, and subject to its authority, they equally participate in its advantages. the natives or indigenes are those born in the country, of parents who are citizens. Society not being ahle to perpetuate itself but by the children of its citizens, those children naturally follow the condition of their fathers, and suceed to all their rights."
"The inhabitants, as distinguished from citizens, are strangers, who are permitted to settle and stay in the country. Bound by their residence to the society, they are subject to the laws of the state, while they reside there, and they are obliged to defend it, because it grants them protection, though they do not participate in all the rights of its citizens. They enjoy only the advantages which the laws, or custom give them. The perpetual inhabitants are those who have received the right of perpetual inhabitants. These are a kind of citizen of an inferior order, and are united and subject to the society without participating in all its advantages."
In fact at the time of founding sometimes the mere word "citizen" without more was used to refer to an indigene. So you see you continue to misrepresent matters and foster inaccuracy because of your lack of knowlege of the history of the time and the use of language then, which is beginning to make evident a willfulness on your part not to see. I will be interested in seeing how you misrepresent what John Marshall said. I have no doubt that you will give it a try. By the way no less a figure than Scalia has recognized in colloquy in a case in recent years that at the time of the founding the Framers were concerned about dual loyalties with one loyalty being to Britain.
At this time in History, the terms were virtually synonymous. At that time period very few people could be native born but not natural born. The overlap was nearly 100%. (Except for slaves and Indians which is the GLARING discrepancy in your theory.) Let me show you an example where the term "native" is used, but the supplied definition is EXACTLY the Vattel Definition.
"...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. "
Modern usage of the term "native" is obviously different from the 18th and 19th centuries usage of the term. Like I said, in those days, there were few people who could be one without being the other. When Tucker was using the term "native" he was very likely using it in the same sense as was the Chief Justice of the Supreme court in 1874. When he said "native" he meant "natural born citizen." (Which does not role off the tongue as easily.) There is no better proof of this sort of lazy word substitution than the fact that many of us freepers have taken to abbreviating it to NBC. It's just easier to use a shorter word or term.
I might not be remembering this correctly, but I seem to recall that Alexander Hamilton proposed that they use the term "native born" and it was rejected in committee. I do recall that there were three suggestions and the final one was the accepted "natural born citizen."
So far the obamatrons are pretty much absent from the many articles about the GA court thing, too.
:-D
You can almost smell the angst! :)
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