Blackstone's Commentaries on Citizenship

Blackstone's Commentaries on the Laws of England ^ | 1765 | Sir William Blackstone

[Jack Black]

Article 1, Section 8, Clause 4 (Citizenship)

Document 1

William Blackstone, Commentaries 1:354, 357--58, 361--62

1765 The first and most obvious division of the people is into aliens and natural-born subjects. Natural-born subjects are such as are born within the dominions of the crown of England, that is, within the ligeance, or as it is generally called, the allegiance of the king; and aliens, such as are born out of it. Allegiance is the tie, or ligamen, which binds the subject to the king, in return for that protection which the king affords the subject. The thing itself, or substantial part of it, is founded in reason and the nature of government; the name and the form are derived to us from our Gothic ancestors.

. . . . .

Allegiance, both express and implied, is however distinguished by the law into two sorts or species, the one natural, the other local; the former being also perpetual, the latter temporary. Natural allegiance is such as is due from all men born within the king's dominions immediately upon their birth. For, immediately upon their birth, they are under the king's protection; at a time too, when (during their infancy) they are incapable of protecting themselves. Natural allegiance is therefore a debt of gratitude; which cannot be forfeited, cancelled, or altered, by any change of time, place, or circumstance, nor by any thing but the united concurrence of the legislature. An Englishman who removes to France, or to China, owes the same allegiance to the king of England there as at home, and twenty years hence as well as now. For it is a principle of universal law, that the natural-born subject of one prince cannot by any act of his own, no, not by swearing allegiance to another, put off or discharge his natural allegiance to the former: for this natural allegiance was intrinsic, and primitive, and antecedent to the other; and cannot be devested without the concurrent act of that prince to whom it was first due. Indeed the natural-born subject of one prince, to whom he owes allegiance, may be entangled by subjecting himself absolutely to another; but it is his own act that brings him into these straits and difficulties, of owing service to two masters; and it is unreasonable that, by such voluntary act of his own, he should be able at pleasure to unloose those bands, by which he is connected to his natural prince.

Local allegiance is such as is due from an alien, or stranger born, for so long time as he continues within the king's dominion and protection: and it ceases, the instant such stranger transfers himself from this kingdom to another. Natural allegiance is therefore perpetual, and local temporary only: and that for this reason, evidently founded upon the nature of government; that allegiance is a debt due from the subject, upon an implied contract with the prince, that so long as the one affords protection, so long the other will demean himself faithfully. As therefore the prince is always under a constant tie to protect his natural-born subjects, at all times and in all countries, for this reason their allegiance due to him is equally universal and permanent. But, on the other hand, as the prince affords his protection to an alien, only during his residence in this realm, the allegiance of an alien is confined (in point of time) to the duration of such his residence, and (in point of locality) to the dominions of the British empire.

. . . . .

When I say, that an alien is one who is born out of the king's dominions, or allegiance, this also must be understood with some restrictions. The common law indeed stood absolutely so; with only a very few exceptions: so that a particular act of parliament became necessary after the restoration, for the naturalization of children of his majesty's English subjects, born in foreign countries during the late troubles. And this maxim of the law proceeded upon a general principle, that every man owes natural allegiance where he is born, and cannot owe two such allegiances, or serve two masters, at once. Yet the children of the king's embassadors born abroad were always held to be natural subjects: for as the father, though in a foreign country, owes not even a local allegiance to the prince to whom he is sent; so, with regard to the son also, he was held (by a kind of postliminium) to be born under the king of England's allegiance, represented by his father, the embassador. To encourage also foreign commerce, it was enacted by statute 25 Edw. III. st. 2. that all children born abroad, provided both their parents were at the time of the birth in allegiance to the king, and the mother had passed the seas by her husband's consent, might inherit as if born in England: and accordingly it hath been so adjudged in behalf of merchants. But by several more modern statutes these restrictions are still farther taken off: so that all children, born out of the king's ligeance, whose fathers were natural-born subjects, are now natural-born subjects themselves, to all intents and purposes, without any exception; unless their said fathers were attainted, or banished beyond sea, for high treason; or were then in the service of a prince at enmity with Great Britain.

The children of aliens, born here in England, are, generally speaking, natural-born subjects, and entitled to all the privileges of such. In which the constitution of France differs from ours; for there, by their jus albinatus, if a child be born of foreign parents, it is an alien.

A denizen is an alien born, but who has obtained ex donatione regis letters patent to make him an English subject: a high and incommunicable branch of the royal prerogative. A denizen is in a kind of middle state between an alien, and natural-born subject, and partakes of both of them. He may take lands by purchase or devise, which an alien may not; but cannot take by inheritance: for his parent, through whom he must claim, being an alien had no inheritable blood, and therefore could convey none to the son. And, upon a like defect of hereditary blood, the issue of a denizen, born before denization, cannot inherit to him; but his issue born after, may. A denizen is not excused from paying the alien's duty, and some other mercantile burthens. And no denizen can be of the privy council, or either house of parliament, or have any office of trust, civil or military, or be capable of any grant from the crown.

Naturalization cannot be performed but by act of parliament: for by this an alien is put in exactly the same state as if he had been born in the king's ligeance; except only that he is incapable, as well as a denizen, of being a member of the privy council, or parliament, &c. No bill for naturalization can be received in either house of parliament, without such disabling clause in it. Neither can any person be naturalized or restored in blood, unless he hath received the sacrament of the Lord's supper within one month before the bringing in of the bill; and unless he also takes the oaths of allegiance and supremacy in the presence of the parliament.

[ASA Vet]

NBC Ping...

[abigkahuna]

I had an interesting conversation the Sunday before last with a Republican party consultant. This was at the Pima County Fair in Tucson. This man says he has been involved from the Federal level, (Nixon Administration) on down and considers himself a moderate republican.

That said all said, he brought up the "Birther" issue in our conversation. He says that he has received two independent emails from separate sources that say that a stealth case is moving through the courts that has standing. In other words, he said that someone with standing has been found. That person would have to be a US Attorney, and or a State Attorney General if I followed him correctly.

This case will be going to the US Supreme Court and will be heard more about in the next 30 days. The problem that is arising is--Will this make Nancy Pelosi President? That is the political question that the insiders are asking themselves.

Take this information for what its worth.

[bgill]

Cuccinelli from VA?

[Jack Black]

A number of birthers are fond of sighting a particular legal dictionary that was available to the founders at the time of the writing of the Constitution. This made me curious if Blackstone had written on "natual born".

Indeed he has! This is a section from his commentary. Here is one important part that seems at odd with the "dual citizenship" theory that many here ascribe to;

"The children of aliens, born here in England, are, generally speaking, natural-born subjects, and entitled to all the privileges of such."

This would seem to make the Obama Sr.'s Kenyan/British citizenship a non-issue, assuming that Obama was in fact born in Hawaii.

As for the John McCain question, it seems to me that at the time of the writing of the US Constitution the term "natural born" was already defined in such a way as to grant that status to children of citizens in good standing born out of the realm, in certain circumstances.

Yet the children of the king's embassadors born abroad were always held to be natural subjects: for as the father, though in a foreign country, owes not even a local allegiance to the prince to whom he is sent; so, with regard to the son also, he was held (by a kind of postliminium) to be born under the king of England's allegiance, represented by his father, the embassador.>

The case of John McCain seems to lie very close to the case of the "embassador". He was serving in an official military capacity, where his allegiance is through his command structure, culminating in the President of the USA, not the President of Panama.

Note the even mere merchants were also already being afforded full natural born status even if born outside the USA at the time, as indictated in this passage.

To encourage also foreign commerce, it was enacted by statute 25 Edw. III. st. 2. that all children born abroad, provided both their parents were at the time of the birth in allegiance to the king, and the mother had passed the seas by her husband's consent, might inherit as if born in England: and accordingly it hath been so adjudged in behalf of merchants.

I think this is a fairly definative rejection "McCain is not natural born" theory based on originalist arguments.

The case for Obama's "natural born" status would depend on his physical location, if we were to use Blackstone's Commentaries as a primary source for the meaning of the term.

If he as born in Kenya, then there he would not have been considered "natural born" using the English Common Law use of the term, as explained here by Blackstone. Preference then, even more so than in 1960 when it was still quite evident in the US laws, was strongly given to the father as the source of citizenship.

[bgill]

The usurper owes allegiance to only one King, King Obama.

Thank you and everyone who has researched and posted NBC threads.

[Jack Black]

FYI.

As requested here is the primary source documentation for my assertion that McCain was in fact qualified as a natural born citizen to assume the office of President, had he won the election.

This seemed a bit to big to put into a commentary, so I have created a new thread for it.

[Bloody Sam Roberts]

Will this make Nancy Pelosi President?

And Joe Biden gets skipped over...because?

[abigkahuna]

I asked this political consultant if it was a southern state. I asked if it was Georgia. I then asked if it is an AG, then that particular state would have to have a compliant legislature and Governor, ie Republican.

The conversation was slippery and ever changing subject on his part. But on our second meeting he did offer that he had received a second email from another source as back up to his original statements. I had the impression that both emails were from source on the east coast.

He is currently serving as a political consultant for a candidate in AZ and perhaps did not want to cloud things up with too much information.

It was I who brought up who had standing, i.e., an US Attorney and he added to that that yes, a US Attorney and that a State AG is also a US Attorney, if I understood him correctly. regards

[abigkahuna]

The thinking is that the ticket would then have to be thrown out I suppose. Although I said that I would prefer Biden to Obama because at least he understands American values and is not a True Believer (my term). Ol Joe is out for Ol Joe so to speak...

[Jacquerie]

Well, I hope you are right as far as someone having the elusive “standing” in order to challenge the qualifications of Hussein to hold office.

As far as Scotus kicking out a sitting President, that will not happen.

On the bright side, a proper ruling from Scotus would preclude the Kenyan from the ballot in 2012.

[Jack Black]

But what hope is there of prevailing? It seems Hawaii has shredded whatever evidence they had. Is there any real hope of proving his birthplace was Kenya? That seems like a tall order. The Soros cleanup squad has taken care of loose ends, including the guy who looked at his passport file, and was assassinated a bit later in front of his church.

[stevie_d_64]

You know...I’ve got Blackstone up on my bookshelf here...

You would think it might be some interesting reading for those seeking elected office...

At least it is useful from a reference standpoint...

I bet you a dollar to a donut hole less that 1% of Federally elected office holders read things like this...

[abigkahuna]

You are right, in that we touched on that briefly. It is a political mater. The USSC could rule on eligibility, but it would have to be congress that would have to invoke punishment. I stated that in the current political climate and make up there is no way congress would remove Obama.

[little jeremiah]

Pinging a few of you to abigkahuna’s interesting comment.

[abigkahuna]

I touched on this in my conversation with him. This is a man btw, older, in his 70s I imagine and has lived and breathed in the trenches politics for decades.

I stated that I thought he was probably born in Hawaii, but the real issue was the law at the time regarding natural born and whether or not he lost his natural born status by taking up Indonesian citizenship. That was the issue I thought and he appeared to nod his head in agreement that that was the issue.

But like I said before--take this information for what its worth...For all I know he was blowing smoke to an independent conservative.

[bgill]

I’m no lawyer nor did I stay at a Holiday Inn, but one would think the ticket would be thrown out and Nancy should be brought into the suit because all three were in on it.

[edge919]

"The children of aliens, born here in England, are, generally speaking, natural-born subjects, and entitled to all the privileges of such." This would seem to make the Obama Sr.'s Kenyan/British citizenship a non-issue, assuming that Obama was in fact born in Hawaii.

In general, it makes the children natural-born subjects. I'm pretty sure this is dependent on being permanent residents and having solitary allegiance to the crown. "Local allegiance is such as is due from an alien, or stranger born, for so long time as he continues within the king's dominion and protection: and it ceases, the instant such stranger transfers himself from this kingdom to another." "as the prince affords his protection to an alien, only during his residence in this realm, the allegiance of an alien is confined (in point of time) to the duration of such his residence, and (in point of locality) to the dominions of the British empire" "And this maxim of the law proceeded upon a general principle, that every man owes natural allegiance where he is born, and cannot owe two such allegiances, or serve two masters, at once." This was the basis for which Wong Kim Ark was determined to be a citizen of the United States, by having alien parents who were permanent U.S. residents, but this did not produce natural born citizenship.

And of course, you can also use this same essay to affirm that Obama was a natural born subject by virtue of his father, but not a natural born citizen. "all children, born out of the king's ligeance, whose fathers were natural-born subjects, are now natural-born subjects themselves, to all intents and purposes, without any exception"

We can look at some examples in the colonial United States to see if they followed Blackstone's principles. Some it is claimed they did, such as in New York, and others not so much.

"Also wee Do for us our Heirs and Successors declare by these Presents that all and every the persons which shall happen to be born within the said Province and every of their Children and Posterity shall have and Enjoy all Liberties Franchises and Immunities of Free Denizens and natural born Subjects within any of our Dominions to all intents and purposes as if they had been abiding and born within this our Kingdom of Great Britain or any other of our Dominions"

link to George Charter of 1732

Here it's saying you are born a Denizen or Natural Born Subject by being born within the province. A denizen is a foreigner granted a right or residence. So one who is born a denizen is not a natural born subject. Simply being born within the province is not enough to be a natural born subject, so we can't simply assume that a jus soli birth results in natural born citizenship ... certainly not to legal foreigners who have not yet naturalized.

[kiltie65]

Yup, Nancy was in it up to her botoxed brow. She was the one who signed all the phony certifications re his eligibility (except Hawaii, for some reason, got a legitimately worded certification...can’t figure that one out?)

[abigkahuna]

Well that is my thinking too and I began mentioning that before the topic changed—I also brought up the issue of Nancy leading the cheer and applause to drown out the objection brought by one member of congress to Dick Cheny presiding over the session of the electoral college votes...