St. George Tucker in one of the appendices in his version of the Blackstone Commentaries, explains his opinion on the role of the English Common law for the United States under the Constitution and whether it is part of Federal Law [he says it isn’t].
“A question has lately been agitated, whether the common, or, unwritten law of England, has been adopted in America, by the establishment of the constitution of the United States; or, in other words, how far the laws of England, both civil and criminal, make a part of the law of the American States, in their united and national capacity.”
“Judge Ellsworth is reported, on a late occasion, to have laid it down as a general rule, that the common law of England is the unwritten law of the United States, in their national or federal capacity.[1] Judge Washington, also, is said to have delivered a similar opinion, upon another occasion. The like opinion has been advanced on the floor of the federal house of representatives .... concurrent opinions from such respectable authority deserve to be candidly, and respectfully examined, where any doubt is entertained of their correctness; and where any such doubt is entertained, they ought to receive an early and full discussion; otherwise they will soon acquire the force of precedents. These are often more difficult to be shaken than the most cogent arguments, when drawn from reason alone.”
Tucker goes on to examine the question, he says that the Common Law was not made part of US law. But in the Postscript, he discusses the case of the United States v. Worrel where Justice Chase says the Common Law is not part of the Federal Law but Justice Peters says that it is and he returns to the ruling of Chief Justice Ellsworth in the Isaac Williams case.
“Here then are two opposite opinions on this great question. On the trial of Isaac Williams, in the district court of Connecticut, February 37, 1797 ...when Judge Ellsworth, then chief justice of the United States, is said to have delivered an opinion nearly to the following effect.”
“The common law of this country remains the same as it was before the revolution. ...”
“As the learned judge in this opinion, refers to no express prohibitory law, except the common law, (by which I presume was meant the common law of England) we must understand his opinion, as founded upon the doctrine that the common law of England is the common law of the United States, in their federal, and national capacity and character. How far reason is on the side of that opinion, the student may form some judgement from what has been said in the foregoing essay.”
http://www.constitution.org/tb/t1e.htm
The case of Isaac Williams was about expatriation, which was also a hotly debated issue in the early years of the Republic.
BTW, Oliver Ellsworth was a delegate to the Constitutional Convention, he was a member of the Committee of Five that drafted the first version of the Constitution but he left the Convention [for personal reasons] before the final draft was presented for signature. He wrote several articles in support of the Constitution during the ratification period.
http://www.let.rug.nl/usa/biographies/oliver-ellsworth/
So pick your Founder and have at it as it doesn’t appear that they could agree either.
P.S.
More from Tucker:
“We may fairly infer from all that has been said that the common law of England stands precisely upon the same footing in the federal government, and courts of the United States, as such, as the civil and ecclesiastical laws stand upon in England: That is to say, it’s maxims and rules of proceeding are to be adhered to, whenever the written law is silent, in cases of a similar, or analogous nature, the cognizance whereof is by the constitution vested in the federal courts; it may govern and direct the course of proceeding, in such cases, but cannot give jurisdiction in any case, where jurisdiction is not expressly given by the constitution. The same may be said of the civil law; the rules of proceeding in which, whenever the written law is silent, are to be observed in cases of equity, and of admiralty, and maritime jurisdiction. In short, as the matters cognizable in the federal courts, belong, (as we have before shewn, in reviewing the powers of the judiciary department) partly to the law of nations, partly to the common law of England; partly to the civil law; partly to the maritime law, comprehending the laws of Oleron and Rhodes; and partly to the general law and custom of merchants; and partly to the municipal laws of any foreign nation, or of any state in the union, where the cause of action may happen to arise, or where the suit may be instituted; so, the law of nations, the common law of England, the civil law, the law maritime, the law merchant, or the lex loci, or law of the foreign nation, or state, in which the cause of action may arise, or shall be decided, must in their turn be resorted to as the rule of decision, according to the nature and circumstances of each case, respectively. So that each of these laws may be regarded, so far as they apply to such cases, respectively, as the law of the land. But to infer from hence, that the common law of England is the general law of the United States, is to the full as absurd as to suppose that the laws of Russia, or Germany, are the general law of the land, because in a controversy respecting a contract made in either of those empires, it might be necessary to refer to the laws of either of them, to decide the question between the litigant parties. Nor can I find any more reason for admitting the penal code of England to be in force in the United States, (except so far as the states, respectively, may have adopted it, within their several jurisdictions) than for admitting that of the Roman empire, or of Russia, Spain, or any other nation, whatever.”
In other words, St. George Tucker takes a very slightly different approach from Alexander Hamilton, Vice Chancellor Sandford, and the US Supreme Court, but all basically arrive at the same place.
In Hamilton’s view, the terms in the Constitution are to be understood by their definitions from the English common law. This implies that “natural born” in the Constitution means what it meant in the common law. By this approach, children born on US soil to legal alien parents are natural born citizens.
In Sandford’s view, it is obvious that there must have been an unwritten national rule for citizenship. Where is that rule to be found? Look to the States at the time of the adoption of the Constitution. It turns out that in every single instance, each State had adopted the rule of the common law. Therefore, the national rule was the same, the rule of the common law. By this approach, children born on US soil to legal alien parents are natural born citizens.
In Tucker’s view, the common law is not the general law of the United States, but in matters on which the statutory law is silent, it becomes a resource, among others, for deciding what the law is. Since citizenship is the province of a nation’s own laws, then the common law would be the appropriate place to look. By the way, Tucker says clearly that on the matter of whether children born on US soil to alien parents are citizens, the law of the United States agrees with the law of England. So according to St. George Tucker, children born on US soil to legal alien parents are natural born citizens.
The US Supreme Court examined all of the legal authorities and sources of information, and concluded that the same rule always applied, first in England, then in the Colonies, then in the United States after independence, and then in the United States after the adoption of the Constitution. And that rule was the rule of the common law. Therefore, according to the US Supreme Court, children born on US soil to legal alien parents are natural born citizens.
We could add to this James Madison’s view, who told us that there were two things that produced the allegiance that made for citizenship - place of birth and parentage. He said that in general, place of birth was “the most certain” and that it was “what applies in the United States.” It follows that by James Madison’s view, children born on US soil to legal alien parents are natural born citizens.
So we have several different perspectives, and very slightly varying approaches to the question, but in every instance, DiogenesLamp is full of you know what.