I'm not sure which statement in 1789 that you are referring to. Are you referring to the Naturalization Act of 1790?
If not, please clarify to what you are referring.
If so, please note that the subject is reiterated in the Naturalization Act of 1795:
…the children of citizens of the United States, born out of the limits and jurisdiction of the United States, shall be considered as citizens of the United State…Exact same verbiage.
The author of Marbury, the basis for our interpretation of the separation of powers, John Marshall, knowing there had been some confusion, re-stated. the definition and cited the source, Vattel, explicitly in his decision on The Venus, 1814. No congressional act can alter a provision of the constitution. That is probably the key notion to be come from Marbury.
Honestly, I'm not sure where you're coming from here. Marbury (5 U.S. 137) and The Venus (12 U.S. 253) have nothing to do one with the other. And, as far as I can search on either justia or findlaw, neither have ever been cited as a precedent within a SCOTUS decision involving naturalization, immigration, or citizenship to this day. (I don't have Lexus/Nexus access, so there might be a case that I can't see via the free stuff)
Marbury set up the basis for judicial review of laws to determine their constitutionality, as you alluded in your post. It essentially stated that this clause within the Judiciary Act of 1789 was unconstitutional:
The Supreme Court shall also have appellate jurisdiction from the circuit courts and courts of the several states, in the cases herein after specially provided for; and shall have power to issue writs of prohibition to the district courts, when proceeding as courts of admiralty and maritime jurisdiction, and writs of mandamus, in cases warranted by the principles and usages of law, to any courts appointed, or persons holding office, under the authority of the United States.Marshall, who wrote the opinion of the court, made the following statement, which was (IMHO) the core of his decision:
The Secretary of State, being a person, holding an office under the authority of the United States, is precisely within the letter of the description, and if this Court is not authorized to issue a writ of mandamus to such an officer, it must be because the law is unconstitutional, and therefore absolutely incapable of conferring the authority and assigning the duties which its words purport to confer and assign.
The Constitution vests the whole judicial power of the United States in one Supreme Court, and such inferior courts as Congress shall, from time to time, ordain and establish. This power is expressly extended to all cases arising under the laws of the United States; and consequently, in some form, may be exercised over the present case, because the right claimed is given by a law of the United States.
In the distribution of this power. it is declared that "The Supreme Court shall have original jurisdiction in all cases affecting ambassadors, other public ministers and consuls, and those in which a state shall be a party. In all other cases, the Supreme Court shall have appellate jurisdiction."
…
To enable this court then to issue a mandamus, it must be shown to be an exercise of appellate jurisdiction, or to be necessary to enable them to exercise appellate jurisdiction.
Now as to The Venus (12 U. S. 253), you give a lengthy extract:
Here is the citation from The Venus, 12 U.S. (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 inquire how far the writers on that law consider the subjects of one power residing within the territory of another, as retaining their original character or partaking of the character 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 the 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 able to subsist and to perpetuate itself but by the children of the citizens, those children naturally follow the condition of their fathers, and succeed to all their rights."
Let's start of from the beginning. You will note that the term "law of nations" is in all lowercase. Had Marshall intended to cite the book written by Vattel as the source, he surely would have capitalized it properly (i.e., "Law of Nations" vice "law of nations"). In fact, if you simply cite "law of nations" in SCOTUS decisions, you will find it cited many times. 99% of the time, the term is not capitalized, but it occasionally is. (For example, United States v. Arjona, 120 U.S. 479)
In fact, do you think that the framers were explicitly talking about Vattel in Article 1, Section 8, when they wrote, To define and punish piracies and felonies committed on the high seas, and offenses against the law of nations?
The law of nations is a concept, essentially talking about "international law." Vattel, himself, defines it as follows:
The Law of Nations is the science which teaches the rights subsisting between nations or states, and the obligations correspondent to those rights.
de Vattel, §3
Marshall, who wrote a partial concurrence to the majority opinion (which was written by Bushrod Washington) did cite Vattel (as did Washington); he also cited Jean-Jacques Burlamaqui, while Washington cited Hugo Grotius extensively writing for the majority of the court. Why?
The answer comes from the nature of the case itself.
This is the case of a vessel which sailed from Great Britain, with a cargo belonging to the respective Claimants, as was contended, before the declaration of war by the United States against Great Britain was or could have been known by the shippers. She sailed from Liverpool on the 4th of July, 1812, under a British license, for the port of New York, and was captured on the 6th of August, 1812, by the American privateer Dolphin, and sent into the district of Massachusetts, where the vessel and cargo were libelled in the District Court.
So naturally, they would have to deal with the law of nations (international law).
The upshot of the case was that the claimants, Lenox, Maitland, Magee, Jones and M'Gregor, had to forfeit the property in question.
For citizenship purposes, though, there was something interesting.
Part of the case was that the claimants were all naturalized citizens who had extensive properties in the US. They went back to Britain for purposes of trade (while the US was at peace with Britain). They shipped the confiscated goods back to the US prior to the outbreak of the war of 1812. Letters of Marque were issued to privateers by the President (with authorization of Congress). Some privateers (the Dolphin) captured the ship, brought it back to Massachusetts, and filed a prize case. The rationale forwarded by the lawyers for the privateers was that the claimants forfeited their naturalized US citizenship when they went back to Great Britain, the land of their birth and, therefore, their property should be considered enemy property as far as the application of Prize Law is concerned.
In developing his rationale for his concurring opinion, Marshall quoted Vattel as part of his rationale in determining whether the claimants would be considered British citizens or US citizens, due to their unique circumstances. Remember the key part of Marshall's opinion that you quoted, It is, therefore, of some importance to enquire how far the writers on that law consider the subjects of one power residing within the territory of another, as retaining their original character, or partaking of the character of the nation in which they reside.
So the context of what Marshall was saying was that their character as natural born British citizens effectively nullified their rights of protections as naturalized US citizens once they returned themselves and domiciled themselves back in Great Britain.
Nowhere in this case did Marshall say that Vattel's definition nullified any of the immigration and naturalization laws on the books at that time, nor did he (either in this case or in Marbury) ever state that a statute couldn't implement a Constitutional clause. In Marbury, he said that a statute couldn't be opposed to a clauses in the Constitution. In this one (Venus), he was silent altogether on that concept.
So what does all of the above have to do with Øbama? Not much at all. And that is the point I was getting at all along.
If you haven't done so already, I encourage you to read the full case, including the pleadings, which is located here (you won't get all of it if you just read the opinions, which is what is cited on the Justia site. If you have already read it, I encourage you to look through it again briefly.
And, please keep my posts on this subject in context: if it can be proven that Øbama was born outside of the United States (or outlying possessions), then, by the Immigration and Nationality Act of 1952, he cannot be a citizen by birth, as his mother did not meet the residency requirements in §301(g) to pass on citizenship to him at birth. Same goal, same end. Just different means to get from point "a" to point "b." I just think that my method would survive in court a lot better than relying on Vattel to nullify the INA (of course, this is in the absence of an authentic Birth Certificate -- as opposed to a certification -- from Hawaii and with a verified, validated, notarized, and authentic Birth Certificate from Mombasa -- or wherever)
So before writing me off as a anti-birther troll, please keep the above in mind. We're going the same way...just taking slightly different paths.
Oh, man did you muff that call.
Marshall’s concurrence in Venus excerpts Vattell at length! Including the exact passage at issue:
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 the 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 able to subsist and to perpetuate itself but by the children of the citizens, those children naturally follow the condition of their fathers, and succeed to all their rights.”
.. and the lengthy excerpt continues.
“Natives or indigenes” is “natives or natural-born citizens” in other translations and “natuerels ou indigenes” in the French.
You are correct that he does not capitalize “law of nations.” But he does indeed to go on to quote Vattel at tlenght.
This indicates that the law of nations is, generally, the Law of Nations, and Vattel is the authority. The generic term is interchangeable with Vattel.
Here's the language from the 1790 act.
And the children of citizens of the United States, that may be born beyond sea, or out of the limits of the United States, shall be considered as natural born citizens:
You see that it's not the exact same language, they left out "natural born". Consdiering that the title of the 1795 act was "The Naturalization Act of 1795" they could hardly do otherwise.
But the title of the 1790 act was ""An act to establish an uniform rule of naturalization", it seems to me that someone noticed the conflict between a "naturalization act" or "defining a uniform rule of naturalization", and "natural born citizen".