Replies

The Common law required that you must be born of Parents who were under the ACTUAL OBEDIENCE of the King. I've got TWO references to that from law books of the time. Even Blackstone's says that if you read through it enough. Not even the British laws go as far as you seem to wish we did.

And did you read what you posted? Particularly the first portion? Where it distinguishes between those born in Normandy previously, and those “born now”? It says “those born now are aliens, those places not being in the actual possession of the King.” So yes, those who are born in a former, but not current, possession are not under the actual obedience of the King. That is because the King had already relinquished the territory at the time of birth of the person in question. This is reinforced where it declares those born in Scotland before James 1 (before Scotland was under the English crown) are aliens. So those born before the English crown was in possession are not “under actual obedience” either. Pretty self evident stuff, which does not help your point.

You keep repeating that Indians were a foreign nation while at the same time arguing that citizens of foreign nations who gave birth on our soil created American citizen children. How can foreigners give birth on our soil to create citizens, when Indians (whom you keep insisting were the same as Foreigners) cannot? Can you not see how your argument contradicts itself?

It’s clear in the Congressional Globe, from such statements as those on p 571 [emphasis added]

Mr. DOOLITTLE Indians not taxed were excluded because they were not regarded as a portion of the population of the United States. They are subject to the tribes of which they belong, and those tribes are always spoken of in the Constitution as if they were independent nations, to some extent, existing in our midst but not constituting a part of our populations and with whom we make treaties.

and on page 2893, the quote so beloved of the NBC’ers where Trumbull mentions “full jurisdiction”. How does he illustrate this full jurisdiction? By saying that you can’t sue an Indian in court. (And of course, you can sue a foreigner resident in the US in court, unless he is a foreign diplomat). He goes on to say [emphasis added]

It is only those persons who come completely within our jurisdiction who are subject to our laws who we think of making citizens.

Now, are you arguing that foreigners in the US who are not diplomats aren’t subject to our laws? Let Mr. Justice Gray in Elk v. Perkins explain it to you:

Indians born within the territorial limits of the United States, members of and owing immediate allegiance to one of the Indiana tribes (an alien though dependent power), although in a geographical sense born in the United States, are no more "born in the United States and subject to the jurisdiction thereof," within the meaning of the first section of the Fourteenth Amendment, than the children of subjects of any foreign government born within the domain of that government, or the children born within the United States of ambassadors or other public ministers of foreign nations.

Now, to break it down for you:

Members of Indian tribes were considered to belong to their separate “nation” even though they were in the US.
Justice Gray compares them to subjects of a foreign nation born in that foreign nation, not to children of foreigners who are born in the US.

Understand the difference?

When a man points to a treatises of law and says that these are the standards which apply to citizenship, should we really care what are the particulars of the case? This is no different than saying that in a search and seizure case, we should look at the 4th Amendment. Notice he is NOT pointing to Blackstone, or any other reference on English Common law.

You are in error, as Gray does point to English common law.

The fundamental principle of the common law with regard to English nationality was birth within the allegiance, also called "ligealty," "obedience," "faith," or "power" of the King. The principle embraced all persons born within the King's allegiance and subject to his protection. Such allegiance and protection were mutual -- as expressed in the maxim protectio trahit subjectionem, et subjectio protectionem -- and were not restricted to natural-born subjects and naturalized subjects, or to those who had taken an oath of allegiance, but were predicable of aliens in amity so long as they were within the kingdom. 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 subjects because not born within the allegiance, the obedience, or the power, or, as would be said at this day, within the jurisdiction, of the King...It thus clearly appears that, by the law of England for the last three centuries, beginning before the settlement of this country and continuing to the present day, aliens, while residing in the dominions possessed by the Crown of England, were within the allegiance, the obedience, the faith or loyalty, the protection, the power, the jurisdiction of the English Sovereign, and therefore every child born in England of alien parents was a natural-born subject unless the child of an ambassador or other diplomatic agent of a foreign State or of an alien enemy in hostile occupation of the place where the child was born. III. The same rule was in force in all the English Colonies upon this continent down to the time of the Declaration of Independence, and in the United States afterwards, and continued to prevail under the Constitution as originally established.

This is one, but there are several others, including a specific reference to Blackstone and Calvin's Case, as well as Tucker's Blackstone. Good try.