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.
A “uniform rule” applies to all, citizen and non-citizen.
Under some conditions a citizen can lose their citizenship (title 8 section 1481) even if they are a NBC, and may wish to re-establish citizenship later. They would need to be naturalized.
The “positive law” or Constitutional law can DEFINE who is not a citizen and requires naturalization AS WELL AS, defining those who are citizens and do not need naturalization.
To take this to an extreme hyperbolic example, Congress could pass an act that says that every person born, regardless of location or parentage, who is born with blue eyes, shall be a natural born citizen of the United States. Because of Article I section 8 clause 4, they would be an NBC.
Meaning the same rights and liberties that a natural born citizen possessed were now possessed by the former alien as well, with the one exception of being elected POTUS.
The 1790 law was written by Congress which had the power to do so under the Constitution, and it was signed by George Washington. It is the closest in time to when the Constitution was written. It was supplanted by later laws. Depends on how originalist one is, I guess.
That is EXACTLY my point. Congress has FAILED to define what is and what is not an NBC. Congress has defined citizenship at birth (title 8 section 1401) but in that code, there is no subsection that identifies NBC. Bad Congress. Needs to find the will to fix.
Sorry, you are incorrect. Congress gets to decide who is and who is not a citizen. One category of that is the condition when a person might lose their citizenship. Congress gets to define those conditions.
Okay, then where in the Constitution is a citizen defined?
Article 1 Section 8 Clause 4
So which ineligible are you a fan of, the Kenyanesian Usurper?
Ted Cruz?
Marco Rubio?
Nikki Haley?
George P. Bush?
They repealed and replaced this law without the natural born citizen language when they realized their error.
Here is the flow
1) Constitution
2) Article 1 Section 8 clause 4 of the Constitution delegates the authority to Congress
3) Congress enacts Acts to exercise their constitutional authority. This can be seen in the first acts of Congress. Subsequent acts have altered the rules.
4) The current rules are codified as Title 8 section 1401 that defines Nationals and Citizens at birth.
https://www.law.cornell.edu/uscode/text/8/1401
If you believe that, you should read Title 8 section 1401 subsection (A)
https://www.law.cornell.edu/uscode/text/8/1401
Define naturalization.
To establish an uniform Rule of Naturalization, and uniform Laws on the subject of Bankruptcies throughout the United States;
St. George Tucker, Blackstone's Commentaries 1:App. 184--85, 254--59; 2:App. 90--103
Do note as well the multiple uses of "alien" within that commentary. You can use the "Find" function to ease you in finding the word's usage.
Which one on your list do you believe is ineligible?
Obama is questionable as there is no evidence to support his claim that he was born in HI, not Kenya. His mother was not old enough to confer citizenship at birth if he was born in Kenya. If he was born in HI, he would be an NBC.
Ted Cruz is an NBC
Marco Rubio is an NBC
Nikki Haley is an NBC
George P. Bush is an NBC
But NOT natural born Citizens. That is defined by natural law. No law of man (positive law) can change natural law.
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 natural-born citizens, are those born in the country, of parents who are citizens. As the society cannot exist and perpetuate itself otherwise than by the children of the citizens, those children naturally follow the condition of their fathers, and succeed to all their rights. The society is supposed to desire this, in consequence of what it owes to its own preservation; and it is presumed, as matter of course, that each citizen, on entering into society, reserves to his children the right of becoming members of it. The country of the fathers is therefore that of the children; and these become true citizens merely by their tacit consent. We shall soon see whether, on their coming to the years of discretion, they may renounce their right, and what they owe to the society in which they were born. I say, that, in order to be of the country, it is necessary that a person be born of a father who is a citizen; for, if he is born there of a foreigner, it will be only the place of his birth, and not his country.
"The citizenship of no man could be previous to the declaration of independence, and, as a natural right, belongs to none but those who have been born of citizens since the 4th of July, 1776."....David Ramsay, 1789.
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