Posted on 01/23/2019 2:21:38 PM PST by rustbucket
I ran across a couple of documents relative to the meaning of Natural Born Citizen, a concept that was a matter of serious discussion in recent presidential elections.
The first of these were 1783 notes by Thomas Jefferson on the meaning of "natural subjects", i.e., when people fit the definition of natural subjects of a country and when they did not. Jefferson’s notes were in part to answer the status of a lady’s son with respect to whether he could inherit property in England. The second item I found was a 1790 US law that defines people born outside of United States as natural born citizens under certain conditions.
Here are Jefferson's extensive notes [Link ] I had searched on ‘natural subject’ which the search results put in bold. Underlines below are mine. I added spaces between lines to help readability.
Letters of Delegates to Congress: Volume 21 October 1, 1783 - October 31, 1784
Thomas Jefferson's Notes
[December ? 1783] (1)
Qu. 1. Can an American citizen, adult, now inherit lands in England?Natural subjects can inherit--Aliens cannot.
There is no middle character--every man must be the one or the other of these.A Natural subject is one born within the king's allegiance & still owing allegiance. No instance can be produced in the English law, nor can it admit the idea of a person's being a natural subject and yet not owing allegiance.
An alien is the subject or citizen of a foreign power.The treaty of peace acknowleges we are no longer to owe allegiance to the king of G.B. It acknowleges us no longer as Natural subjects then.
It makes us citizens of independent states; it makes us aliens then.A treaty with a foreign nation where the king's powers are competent to it as in this which is a case of peace & war, supersedes all law.
If the king's powers were not competent before, the act of parliament of 1782 has made them so. An American citizen adult cannot inherit then.
Qu.2. The father a British subject; the son in America, adult, and within the description of an American citizen, according to their laws. Can the son inherit?He owes no allegiance to Great B. The treaty acknowleges he does not. But allegiance is the test of a natural subject. Were he to do an act here which would be treason in a British subject he could not be punished should he happen to go there.
He owes allegiance to the states. He is an alien then and cannot inherit.Obj. The state of the father draws to it that of the son.
Ans. In Villenage it does, but in no other case at the Com- [mon] law. Thus a Natural subject having a son born in a foreign state; the son was an alien at the Com. law. The stat. 25.E.3. st.2. first naturalized him if both parents were, at the time of his birth, natural subjects; & 7.Ann.c.5. & 4.G.2.c.2l. where the father alone was.
So an Alien in England having a child born there, that child is a natural subject. A denizen purchases land. His children born before denization cannot inherit, but those born after may. The state of the father then does not draw to it that of the child, at the Com. law.
But does it by the statutes? No, for here are statutes first making the son born abroad a natural subject, owing allegiance. Then comes a treaty of peace wherein the king absolves him from his allegiance & declares him an Alien. This then supersedes the authority of the statute.
It is said 2.P.W.124. 1.B1.357. that natural allegiance cannot be cancelled but by act of parl[iament].(2) But surely national treaties supersede acts of parl. The oath of allegiance took it's origin from the feudal oath of fealty. But as the fealty of the vassal could be relinquished by the lord, so can the allegiance of the subject by the king. If he withdraws his protection allegiance is gone. But he can withdraw his protection without consulting parliament.
Qu. Were the k[ing]'s subjects in France aliens?If they were not, did they not become so when given up?
Must they not of course become so when taken from him by a superior power?
Qu. 3. The father a British subject. The son as in Qu. 2. but an infant. Can he inherit?1st. by the Common law.
We have seen before that the state of the father does not draw to it as an accessory that of the son where he is an adult.But by the common law.
Denization may be 1. by parliamt. 2. by letters pat[ent]. 3. by Conquest. As if the k[ing] & his subjects conquer a kingdom, they become denizens of kingdom conquered. Calvin's ca. 6.a.
If an alien have issue born within the k[ing]'s obedience, the issue is a natural only: ib. This excludes enemies possess[in]g a town &c. ib.
Abjuratur still owes allegiance because he may be restored. 9.b. So an outlaw. ib. 14.a.
The law of nature is part of the law of Engld. 12.b.If a noble of another country come to Engld., he sues by his proper name, not by that of his nobility, because on a plea in abatemt that he is not noble, it is not tried by jury but by the record of parliamt. 15.a.
Ambassadors having children born in foreign nation, they are naturl subjects by the com. law. 18.a.
While the kings of Engld. had possessions in France, those born during such possession were naturl subjs. of Engld. 19.a. So is it now of Ireland, Jersey, Guernsey, Man, Alderney, &c.
If a woman alien marrieth a subject she shall not be endowed. 25.a. An alien cannot be ten[ant] by the courtesy. ib.
If Engld & Scotld. sh[oul]d by descent be divided & governed by several kings, those born under one sovereign while the realms were united would remain natural subjects & not aliens. 27.b.
He cannot be a subject born of one kingdom that was born under the ligiance of a king of another kingdom. 18.a.
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MS (DLC: Jefferson Papers). In the hand of Thomas Jefferson and endorsed by him: "Alien. British & American." Jefferson, Papers (Boyd), 6:433-35.1 Jefferson apparently drafted these undated notes on British and American citizenship and alienage during this period not only because he was studying the treaty of peace but also because he had received a specific request for information from Elizabeth House Trist concerning the status of her son Browse, whose father was a British officer. Jefferson's response to Mrs. Trist has not been found, but for his record of it see ibid., p. 418.
For an analysis of American ideas of allegiance and the impact of the American Revolution and the treaty of peace on the rights and duties of citizenship, see James H. Kettner, The Development of American Citizenship, 1608-1870 (Chapel Hill: University of North Carolina Press for the Institute of Early American History and Culture, 1979), chapter 7.
2 Jefferson's references are to P[eere] W[illiams'] Reports, 2:124, and Bl[ackstone's] Commentaries, 1:357, although the latter is in error, for Blackstone's discussion of the cancellation of natural allegiance by act of parliament only is actually found at page 374, not 357, of Book one of his Commentaries. See William Peere Williams, Reports of Cases Argued and Determined in the High Court of Chancery....3 vols. (London, 1740-49); William Blackstone, Commentaries on the Laws of England. 4 vols. (Oxford, 1770); and Catalogue of the Library of Thomas Jefferson, comp. by E. Millicent Sowerby, 5 vols. (Washington: Library of Congress, 1951-59), 2:204- 5, 228-29.
Here is the 1790 law of the United States that mentions/defines natural born citizens. “An act to establish an uniform Rule of Naturalization” (March 26, 1790) [Link, my emphasis below].
Be it enacted by the Senate and House of Representatives of the United States of America, in Congress assembled, That any Alien being a free white person, who shall have resided within the limits and under the jurisdiction of the United States for the term of two years, may be admitted to become a citizen thereof on application to any common law Court of record in any one of the States wherein he shall have resided for the term of one year at least, and making proof to the satisfaction of such Court that he is a person of good character, and taking the oath or affirmation prescribed by law to support the Constitution of the United States, which Oath or Affirmation such Court shall administer, and the Clerk of such Court shall record such Application, and the proceedings thereon; and thereupon such person shall be considered as a Citizen of the United States. And the children of such person so naturalized, dwelling within the United States, being under the age of twenty one years at the time of such naturalization, shall also be considered as citizens of the United States. 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: Provided, that the right of citizenship shall not descend to persons whose fathers have never been resident in the United States: Provided also, that no person heretofore proscribed by any States, shall be admitted a citizen as aforesaid, except by an Act of the Legislature of the State in which such person was proscribed.
Ping to you lovers of history.
But one thing is rarely discussed about the Mexican constitution is one must be a citizen to own land and they are very restrictive about granting citizenship.Because of that a US citizen cannot have title in their name to any property in Mexico. And until that is changed the US should seriously consider making that reciprocal.prohibiting citizen of Mexico or countries with similar restrictions from doing so. .
Thanks for the ping Rusty!
Jefferson’s notes are NOT the supreme law of the land. Neither are dictionaries or any other material outside of the Constitution. As such they are IRRELEVANT. The supreme law of the land is the Constitution.
Article I Section 8 Clause 4:
To establish a uniform rule of naturalization, and uniform laws on the subject of bankruptcies throughout the United States;
This is an enumerated and unrestricted power that is delegated to Congress. Neither the President, the Courts, or the States can make rules regarding naturalization. The “uniform rule of naturalization” includes:
Who is and is not a citizen
How a citizen might lose their citizenship
How an alien might become a citizen
Who gets to reside in the US as a non-citizen
and
Who is a natural born citizen.
Congress first exercised this authority in the first acts of congress and in subsequent acts of congress, have amended those rules. HOWEVER, Congress has never specifically stated what is or is not, a Natural Born Citizen. In my opinion, this is a failure of will by Congress and should be addressed.
In the absence of Congress definition, the current legal interpretation is that a person, who by the immutable conditions of their birth, is a citizen at birth and thus requires no naturalization, is a natural born citizen. Agree with it or not, that is the current state of affairs.
This will change only upon two conditions. 1) SCOTUS changes their current interpretation of the 14th amendment. Specificly the “subject to the jurisdiction thereof”, clause.
or
2) Congress is changed to the point that an act is passed that defines NBC.
Both options seem like remote possibilities at this time.
"Ourselves" means "We the People," the citizens of the United States who established the Constitution and delegated our powers to the states and the federal government.
"Our Posterity" means the children born to We the People.
Resident aliens are not "We the People," as they are not citizens and cannot vote for Representation in the House. Therefore, the children of resident aliens are not the "Posterity" of "We the People."
Since resident aliens are expected to be here for a long time, it is reasonable to assume that they will have children. Their children may be born here, but they are not citizens descended via parentage, as their parents are still citizens of their home countries. They are not the Posterity of We the People.
It gets even murkier when the parents aren't even resident aliens, but people on temporary visas, such as tourists, students, and specialty or seasonal workers (L1, H-1B, H-2B).
-PJ
Jus Soli + Jus Sanguinis = Natural Born Citizen is NOT the current interpretation. The current interpretation is
Citizen at birth = Natural Born Citizen
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
~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~
“shall be considered as” clearly indicates they were not without this law, which was repealed..
It can be reasonably argued that Congress realized that under Article I, Section 8 of the Constitution, Congress is given the power to make uniform laws on naturalization and that this power did not include the power to decide who is included or excluded from being a presidential Article II "natural born Citizen." While Congress has passed throughout United States history many statutes declaring who shall be considered nationals and citizens of the United States at birth and thereby exempting such persons from having to be naturalized under naturalization laws, at no time except by way of the short-lived "natural born" phrase in Naturalization Act of 1790 did it ever declare these persons to be "natural born Citizens."
The uniform definition of "natural born Citizen" was already provided by the law of nations and was already settled. The Framers therefore saw no need nor did they give Congress the power to tinker with that definition. Believing that Congress was highly vulnerable to foreign influence and intrigue, the Framers, who wanted to keep such influence out of the presidency, did not trust Congress when it came to who would be President, and would not have given Congress the power to decide who shall be President by allowing it to define what an Article II "natural born Citizen " is.
Additionally, the 1790 act was a naturalization act. How could a naturalization act make anyone an Article II "natural born Citizen?" After all, a "natural born Citizen" was made by nature at the time of birth and could not be so made by any law of man.
Citizen at birth was rejected by the founders as insufficient. The chose natural born citizen specifically to exclude the children of foreign nationals.
Alexander Hamilton’s suggested presidential eligibility clause:
No person shall be eligible to the office of President of the United States unless he be now a Citizen of one of the States, or hereafter be born a Citizen of the United States.
Many of the founders and framers expressed fear of foreign influence on the person who would in the future serve as President of the United States since this particular office was singularly and uniquely powerful under the proposed new Constitution. This question of foreign influence was elevated when John Jay considered the additional power granted to the Presidency during times of war, that is when he serves as Commander in Chief of the military. Jay felt strongly that whoever served as President and Commander In Chief during times of war must owe their sole allegiance to and only to the United States.
Because this fear of foreign influence on a future President and Commander in Chief was strongly felt, Jay took it upon himself to draft a letter to General George Washington, the presiding officer of the Constitutional Convention, recommending/hinting that the framers should strengthen the Citizenship requirements for the office of the President.
John Jay was an avid reader and proponent of natural law and particularly Vattel’s codification of natural law and the Law of Nations. In his letter to Washington he said that the Citizenship requirement for the office of the commander of our armies should contain a “strong check” against foreign influence and he recommended to Washington that the command of the military be open only to a “natural born Citizen”. Thus Jay did not agree that simply being a “born Citizen” was sufficient enough protection from foreign influence in the singular most powerful office in the new form of government. Rather, Jay wanted to make sure the President and Commander In Chief owed his allegiance solely to the United States of America. He wanted another adjective added to the eligibility clause, i.e., ‘natural’. And that word ‘natural’ goes to the Citizenship status of one’s parents via natural law.
Below is the relevant change to Hamilton’s proposed language detailed in Jay’s letter written to George Washington dated 25 July 1787:
Permit me to hint, whether it would be wise and seasonable to provide a strong check to the admission of Foreigners into the administration of our national Government; and to declare expressly that the Command in Chief of the American army shall not be given to nor devolve on, any but a natural born Citizen.
http://www.art2superpac.com/issues.html
Natural born Citizen is defined by Natural Law (The Laws of Nature and Nature's God). No law passed by man can change the laws of nature.
I was a lurker when the natural born debates were going on here during Obummer. I did read a lot of the threads, and researched it some on my own, and added that knowledge to what I learned in government classes in high school and college. And the one thing I am very certain of is what you have presented here in Thomas Jefferson’s notes, under current US law and precedent there are only two types of citizens; natural born and naturalized. That’s why I think we need a constitutional amendment changing birthright citizenship under the 14th Amendment.
Thanks for finding and posting this.
Is that interpretation, in your opinion, based upon natural law or positive law?
“Natural law” and Vattel’s codification are IRRELEVANT. The supreme law of the land, the Constitution specifically enumerates that power with Congress.
Natural law underpins the entire Constitution.
Natural law is not the supreme law of the land. The supreme law is the Constitution and in Article I section 8 clause 4, Congress is enumerated with the exclusive and unrestricted power to define the uniform rule of naturalization.
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