Free Republic
Browse · Search
News/Activism
Topics · Post Article

Skip to comments.

Who is a Natural Born Citizen?
Vanity & compilation from various sources | 2011-07-03 | Sourcery & various other sources

Posted on 07/03/2011 7:26:19 PM PDT by sourcery

The Constitution requires that the President of the United States must be a natural born citizen:

Article II, section 1, pa. 5: "No Person except a natural born Citizen, or a Citizen of the United States, at the time of the Adoption of this Constitution, shall be eligible to the Office of President; neither shall any Person be eligible to that Office who shall not have attained to the Age of thirty five Years, and been fourteen Years a Resident within the United States."

If "natural born citizen" is a synonym for "citizen," then there is no reason for adding the exception "or a Citizen of the United States, at the time of the Adoption of this Constitution." None at all. Being a citizen is not sufficient, unless you happened to be alive when the Constitution was adopted.

So what, then, is a "natural born citizen"? To answer that question definitively will require a full examination of the concepts and history of citizenship.

Types Of Citizenship: Jus Soli, Jus Sanguinis, Natural Born, Native Born, Naturalized

Jus soli citizenship: "Jus soli" is a Latin phrase meaning "law of the soil." Jus soli citizenship is any citizenship that inheres in a person based on the location of his or her birth.

Jus sanguinis citizenship: "Jus sanguinis" is a Latin phrase meaning "law of the blood." Jus sanguinis citizenship is any citizenship that inheres in a person based on his or her ancestry.

Native born citizenship: A native born citizen is one whose citizenship derives from the facts of his birth, and who becomes a citizen at the moment of birth. In both US and British law, those born within the sovereign territory of the country or born to parents who are citizens (subjects) of the country when the person is born are native citizens (subjects.) Native born persons are said to have "birthright citizenship." Note that one can be "native born" either by the "jus soli" principle or by the "jus sanguinis" principle.

Naturalized citizenship: A naturalized citizen is one whose citizenship is granted by statute or by the decision or act of a sovereign.

Natural born citizenship: A natural born citizen is one whose citizenship is beyond dispute, not synthetic, not subject to conflicting claims, not granted by statute or by any act of a sovereign, but inheres naturally in the person according to principles that don't depend on laws or decisions of a sovereign. [The rest of this essay will fully justify this definition]

The 14th Amendment created an implicit distinction among 14th Amendment native-born citizens, and statutory native-born citizens. A 14th Amendment native-born citizen is any person who (a) was born in the United States, and (b) was subject to U.S. jurisdiction at the time of his or her birth. In contrast, a statutory native-born citizen is a person who does not qualify for birthright citizenship under the 14th Amendment, but receives U.S. citizenship, at birth, by laws enacted by Congress. For example, foreign-born children of American parents do not receive citizenship from the 14th Amendment; such children acquire U.S. citizenship, at birth, by statute.

So those born outside the United States to parents who are US citizens at the time of the person's birth are both native citizens and also naturalized citizens, since their citizenship is a) granted to them by an Act of Congress (based on Congress' Constitutional authority "To establish an uniform Rule of Naturalization,") and b) effective from the instant of their birth, based on the fact that the person's parents were US citizens at that moment.

Similarly, it is necessary to distinguish between Constitutional and statutory natural born citizens:

These distinctions are not my invention. The U.S. Department of State Foreign Affairs Manual—7 FAM 1130 (page 9) says:

...the fact that someone is a natural born citizen pursuant to a statute does not necessarily imply that he or she is such a citizen for Constitutional purposes

If we were to define "natural born citizen" to mean anyone who is a "citizen at birth", our definition of "natural born citizen" would be statutory because it would depend on the statute or law which defines "citizen at birth". Under existing law, all children born in the United States (except the children of foreign diplomats) are "citizens at birth". Therefore, under existing law, almost all children born in the U.S.—including children of illegal immigrants—could be regarded as statutory natural born citizens.

H.R.1940, also known as the Birthright Citizenship Act of 2007, would change the existing law so that it would no longer grant "citizenship at birth" to children of illegal immigrants. If Congress were to pass H.R.1940, it would alter the meaning of "citizen at birth", and therefore would alter our statutory definition of natural born citizen. If H.R.1940 were enacted, the U.S.-born children of illegal immigrants could no longer be regarded as statutory natural born citizens.

Is "Natural Born Citizen" Equivalent To "Natural Born Subject" As Defined By English Common Law?

The argument is made that "natural born citizen" means the same thing that "natural born subject" means in English common law, except for the differences in meaning between a subject and a citizen. That idea is false. The full proof of that assertion is presented below, in the section entitled "The Semantics Of Natural Born Subject In English Common Law." The short version (executive summary) is as follows:

The English common law did not distinguish between a "natural born subject" and a naturalized subject. Under English common law, once a person became naturalized, he or she was deemed to be a "natural born subject." Hence, under English common law a naturalized citizen was considered a "natural born subject." That's why, in English, the act of making someone a citizen by law or act of the sovereign is called "naturalization." Referring to that act as "naturalization" makes no sense otherwise.

Therefore, giving the "natural born Citizen" clause the same meaning as a "natural born subject" would have allowed a naturalized citizen to be eligible to be President of the United States. But Article II, Section 1, Clause 5 mandates that only a "natural born Citizen" is eligible to be President. The clause is written as "No person except . . . shall be eligible . . ." which means that one must be a "natural born Citizen" in order to be eligible to be President, with no exceptions other than for those who were citizens when the Constitution was adopted.

The way we in the US have interpreted the "natural born Citizen" clause since the beginning of the Republic, a naturalized citizen is not eligible to be President. But assuming the "natural born Citizen" clause had the same meaning as a "natural born subject," with the Constitution as written it would not have conveyed in any manner that a naturalized citizen was not eligible to be President. No where do we find in the Constitution any statement that a naturalized citizen is not eligible to be President. To reach this conclusion, we have always relied upon the "natural born Citizen" clause itself which we have compared with the fact that the Framers prescribed in Article I that naturalized citizens were eligible to be Senators ("nine Years a Citizen of the United States") and Representatives (seven Years a Citizen of the United States") . The manner in which the Framers provided that Senators and Representatives needed to be "Citizen of the United States" for only a certain amount of years shows that the naturalized citizen class was included within "Citizens of the United States" and not within "natural born Citizens." This shows that naturalized citizens were not part of "natural born Citizens."

So equating the meaning of a "natural born Citizen" to a "natural born subject" would have allowed naturalized persons to be President, a result that we have rejected from the beginning of the Constitutional Republic. Such a meaning would have created an exception to the "natural born Citizen" clause which would have eviscerated the clause itself. Additionally, since Congress has the power under Article I, Section 8, Clause 4 to make uniform the naturalization laws, such a meaning would have given Congress the power to decide who could be President by simply changing the naturalization requirements. The Framers, fearing that Congress would allow foreign influence to creep into the office of President if it were given the power to select the President, did not give Congress such power.

But the argument is also made that "natural born citizen" differs from "natural born subject" in two ways, not just one: 1) The difference in meaning between a subject and a citizen, and 2) "natural born citizen," unlike "natural born subject," excludes naturalized citizens. But this thesis also is easily falsified:

Firstly, as soon as a second difference is posited, the entire rationale for the argument collapses utterly. That rationale is based on the premise that US citizenship law derives directly from English common law regarding who is or is not a British subject. But if "natural born citizen" differs in meaning from "natural born subject" in any way other than is required by the fact that the US has citizens and Britain has subjects, that invalidates the only premise and justification for defining the US term based on the definition of the British term. It breaks the symmetry, and sets the precedent that the meaning can differ in other ways as well. In other words, if the meaning of the two terms differ in at least one respect other than the difference between subject and citizen, what prevents them from being different in yet a third way? Or a fourth? And so on, ad infinitum.

Secondly, the historical facts are clear and undeniable, and are strongly supported by Supreme Court rulings: English common law was the basis for the common law of the original British colonies, and then of the original States of the Union, but was not the basis for the common law of the United States Federal government.

The framers rejected the notion that the United States was under English Common Law, “The common law of England is not the common law of these States.” —George Mason, one of Virginia’s delegates to the Constitutional Convention.

One reason that English common law was rejected as the basis for US Federal common law is because the US was founded as a Constitutional Republic, not as a monarchy. The founding principles were different, and in fact were an explicit rejection of key foundational principles of English law and English government. Another reason was simply that each colony was founded at a different time, adopted English common law as its own at the moment of its founding, but then evolved its own common law going forward, independently of Great Britain and the other colonies. So there was no common "common law" among the founding States!

The Founders had no choice but to start a brand new legal tradition, based on the principles of government in which they believed, and not based on those of the nation whose government and political traditions they had fought and died to repudiate and discard. In fact, they fought yet a second war over precisely the issue of whether or not the British definition of "natural born subject" applied to US citizens: The War of 1812!

One of they key disagreements between the US and Britain that led to the War of 1812 was the practice of the British Navy of impressing into British naval service sailors (and even passengers) they found on ships at sea. "Drafting" people into military service (to use the modern term) was predicated on the British definition of "natural born subject." Under British law then and now, anyone either born on British soil or born to parents who were British subjects was also a British "natural born subject," and hence owed allegiance to the British Crown, and so could be "impressed" (drafted) into British military service.

In the late 18th and early 19th centuries, many US citizens had either been born on British soil according to British law (the American colonies were British soil according to British law until the Crown signed the peace treaty with its former colonies,) or else had parents who were British subjects at the time of their birth. The US government strenuously objected to having its citizens kidnapped from ships at sea in order to be impressed into the British Navy, rejected the argument that Britain had any right to do this based on the British definition of "natural born subject," and insisted that on US ships at sea, only US law applied, and on non-British ships, only the "law of nations" applied. And this objection by the US would only have been logically consistent if the US had categorically rejected the British definition of "natural born subject," and if that rejection involved issues other than the difference between a subject and a citizen.

In addition to going to war, the US took other measures to deal with the problem of having its sailors impressed into the British Navy: On February 9, 1813, the US House of Representatives passed a law that required that all the officers and three fourths of the seamen on a ship of the United States be natural born citizens. Whatever "natural born citizen" meant to the founding generation (many of whom were still alive and serving in Congress at the time,) the US Congress of 1813 thought that requiring a person to be such would prevent the British definition of "natural born subject" from applying to such a person—which means that a "natural born citizen" of the US could not have been born on British soil, nor could a "natural born citizen" of the US have even one British parent.

Finally, words and terms of art have the meanings they do because of their utility in the culture and society that uses them. New words and phrases are created with particular meanings, and existing words and phrases are given new meanings, because those new meaning serve the purposes of those who use them, and old meanings no longer do. So that raises the question of the purpose or intent of the purely American term "natural born citizen," especially in the context of the new Constitutional Republic being created by those at the Constitutional Convention.

Original Intent

In Alexander Hamilton's first draft of the U.S. Constitution, a person had to be "born a citizen" of the United States in order to be eligible to serve as president. However, in July 1787, John Jay wrote a letter to George Washington, recommending that the presidential eligibility requirement be changed from "born a citizen" to "natural born citizen". The stated purpose of the change was to exclude "foreigners" from the presidency:

“Permit me to hint whether it would not 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.”

From this information alone, we may infer that:

The wording change from "born a citizen" to "natural born citizen" doesn't make any sense—it would not have excluded anyone not already excluded by the "born a citizen" requirement—unless the term "natural born" is understood as more restrictive than "native born." To fully eliminate the possibility of someone who could possibly be classified as a foreigner becoming President, the meaning of "natural born citizen" would have to include only persons who, from birth, owed allegiance to the United States exclusively and did not acquire, since birth, any foreign allegiance or nationality.

The change from "born a citizen" to "natural born citizen" would not have provided any additional protection against foreign influence in the presidency—that is, Jay's wording change could not have barred from the presidency anyone who was not already barred by the "born a citizen" requirement—unless the term "natural born citizen" meant a person who was not a "foreigner" (a citizen or a subject of any foreign country) since birth.

John Jay's letter to Washington establishes the fact that the Framers were worried about the undivided loyalty of the President, and thought that the requirement that he be a "natural born citizen" would be sufficient to prevent anyone with foreign allegiance (anyone who could be claimed as a subject or citizen of a foreign sovereign) from serving as President. But how could that be, if "natural born citizen" differs from "natural born subject" solely in the difference between a subject and a citizen? A British "natural born subject" could have multiple nationalities, and owe allegiance to multiple sovereigns. And many nations claim anyone with at least one parent (sometimes it must be the father, sometimes it must be the mother, sometimes both) who is a citizen or subject of that nation as a citizen/subject also.

Clearly, if both your parents are citizens (or subjects) of the same sovereign, and you were born in that same sovereign's territory, then and only then is it impossible for any foreign sovereign to have a claim to your allegiance under the law of nations as commonly understood. John Jay's request to Washington makes no sense otherwise.

Consider again Article II, section 1, pa. 5: "No Person except a natural born Citizen, or a Citizen of the United States, at the time of the Adoption of this Constitution, shall be eligible to the Office of President; neither shall any Person be eligible to that Office who shall not have attained to the Age of thirty five Years, and been fourteen Years a Resident within the United States." That limits who may be President to persons who meet the following requirements:

Why did the Constitutional Convention include that last exception, allowing those who were citizens at the time the Constitution was adopted to be President?

Before answering that question, consider the case of Congressman Smith. He was born in South Carolina before the American Revolution. At the time of the Revolution, he was not yet an adult. His parents were British loyalists, and fought against the Revolution. But after the Revolution and the adoption of the Constitution in 1787, he was elected to Congress. But his right to be seated was challenged on the basis that he was not a citizen, due to the actions of his parents.

James Madison himself spoke in defense of the fact that Mr. Smith was a citizen. The reasoning he used is decisive with respect to understanding the reason for the exception in the Constitution to the "natural born citizen" requirement.

Madison essentially argued that Mr. Smith was a citizen because of where he was born, and because he was a minor when his parents sided with the British loyalists against the American Revolutionaries. He focused on that point, because he obviously felt that any adults who sided with the British loyalists would not qualify as citizens, regardless of where they were born (he explains the reason for that.) Bear in mind that the Constitution allows naturalized citizens to serve in Congress, there is no requirement that one have "birthright citizenship" (whose normative definition means either "jus soli" OR "jus sanguinis" citzenship (OR, not AND.)) But Madison nevertheless argued that Mr. Smith was a citizen from birth, by reason of his place of birth alone, and explicitly not due to his parentage, because (as Madison argues) his parents never were US citizens at all.

Madison's argument prevailed, and Mr. Smith was seated as a Congressman. The Congress accepted Madison's argument that Mr. Smith had birthright citizenship solely due to the location of his birth in South Carolina—when South Carolina was a British Colony, and not yet a State of the United States. By that same logic, most residents of the US at the time the Constitution was adopted were native citizens of the US by their place of birth alone.

Note that, according to Madison's argument, those who were citizens of any State became citizens of the US instantly, automatically and by operation of natural law and the law of nations the moment two events occurred: 1) The society in which they were citizens came under the sovereignty of the United States, and 2) they were adults who accepted, and did not reject, allegiance to the United States. However, their status as US citizens began only at that moment, and not before. Therefore, most people who were alive when the Constitution was adopted would have had parents who were not US citizens when they were born. That point is crucial, and decisive.

So, based on Madison's argument (which Congress accepted,) if "natural born citizen" means simply "native born," or means essentially the same as "natural born subject" (differing only to the extent that a citizen differs from a subject, and also excluding those whose citizenship was acquired by naturalization) then any citizen of the US at the time the Constitution was adopted would satisfy the "natural born citizen" requirement, so there would be no need for the exception, and its inclusion in the Constitution makes no sense. No sense at all.

But if "natural born citizen" means "born on US soil, with parents who were US citizens when their child was born," then it would in fact be true that no one older than 13 years of age (at most) could have satisfied the "natural born citizen" requirement in 1789 (when the Constitution was ratified,) in which case there is a good reason for the exception. Without that exception, George Washington would not have been eligible, nor would most of the Presidents after him until well into the 19th century.

The above is sufficient to establish the meaning of "natural born citizen" beyond any reasonable doubt. But there is yet more evidence that leaves no possibility of doubt whatsoever. We have the testimony of Founder and historian David Ramsay (April 2, 1749 to May 8, 1815,) who was an American physician, patriot, and historian from South Carolina and a delegate from that state to the Continental Congress in 1782-1783 and 1785-1786. He was the Acting President of the United States in Congress Assembled. He was one of the American Revolution’s first major historians. A contemporary of Washington, Ramsay writes with the knowledge and insights one acquires only by being personally involved in the events of the Founding period.

Dr. Ramsay wrote an essay entitled "A Dissertation on the Manners of Acquiring the Character and Privileges of a Citizen" (1789,) a very important and influential essay on defining a “natural born Citizen.” In his 1789 article, Ramsay first explained who the “original citizens” were and then defined the “natural born citizens” as the children born in the country to citizen parents. He said concerning the children born after the declaration of independence, “[c]itizenship is the inheritance of the children of those who have taken part in the late revolution; but this is confined exclusively to the children of those who were themselves citizens….” Id. at 6. He added that “citizenship by inheritance belongs to none but the children of those Americans, who, having survived the declaration of independence, acquired that adventitious character in their own right, and transmitted it to their offspring….” Id. at 7. He continued that citizenship “as a natural right, belongs to none but those who have been born of citizens since the 4th of July, 1776….” Id. at 6.

Hence the need for the time-limited Constitutional exception that permitted those who were citizens when the Constitution was adopted to be President, since only those born after 4 July 1776 would have qualified as natural born citizens, and they would have been no older than 13 years of age in 1789.

Given Dr. Ramsay's position of influence and especially given that he was a highly respected historian, Ramsay would have had the contacts with other influential Founders and Framers and would have known how they too defined “natural born Citizen.” Ramsay, being of the Founding generation and being intimately involved in the events of the time would have known how the Founders and Framers defined a “natural born Citizen” and he told us that definition was one where the child was born in the country of citizen parents. In giving us this definition, it is clear that Ramsay did not follow the English common law but rather natural law. Specifically, natural law with respect to questions of nationality and allegiance to a sovereign.

Note the phrase “as a natural right." Modernly, it seems strange to us to associate questions of citizenship with "natural rights." We consider questions of citizenship to be purely legal matters, not questions of "laws of nature" such as those investigated by physicists. But that was not at all true in the 18th century. At the time, science was still in its infancy, and its stunning and then-very-recent success inspired those who lived through the initial scientific revolution to seek "natural laws" to explain and justify their hypotheses, theories, concepts and policies. That tack was especially strong among those who founded the United States and wrote its Constitution. They were determined to throw off the chains of tradition and arbitrary authority, and to establish their society and government based on invariant, self-evident principles arrived at by reason and conformance with objective reality. They used the term "natural" in a way similar to the way we modernly use the term "scientific," in the sense of "justified by reason and the way the world works, not by tradition or arbitrary human policy" (which isn't quite the formally correct definition, but is nevertheless what most people mean when they use the term.)

That's why the political writings of the time constantly and incessantly refer to "natural law." The point was to claim that the concepts, principles, rules or laws under discussion were derived by reason and logic from objective facts, and not merely the remnants of irrational cultural traditions. It was the Age Of Reason, and naturalness was its standard of validity and truth.

When the US Constitution was written, the "natural law" that dealt with issues such as nationality and allegiance to a sovereign was called "the law of nations." Modernly, we call this "international law." In 1789, the preeminent codification, description and explanation of "the law of nations" was a work written by Emerich de Vattel, entitled THE LAW OF NATIONS, or principles of the law of nature applied to the conduct and affairs of nations and sovereigns. The Founders were not only familiar with de Vattel's treatise, they relied on it extensively when they wrote laws and Constitutions (of their respective States, not just the Federal one.)

In Section 212 of de Vattel's treatise, he states the following:

§ 212. Of the citizens and natives.

“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.”

Note that de Vattel defines "natural born citizen" as the purest form of citizenship, requiring both jus soli ("law of the soil") citizenship and jus sanguinis ("law of the blood") citizenship—with BOTH parents being citizens.

But de Vattel wrote in French, not in English. In French, the words he used instead of the English "natural born citizens" were "les naturels, ou indigenes." Literally, "les naturels, ou indigenes" translates as "the naturals, or citizens." Note that "les naturels" does not translate as "natives." For “naturel” to mean native the word would need to be used as an adjective. In the quoted section, it is used as a noun. In fact, when de Vattel defines "natural born citizens" in the second sentence of section 212 after defining general or ordinary citizens in the first sentence, you see that he uses the word "indigenes" for natives along with "Les naturels" in that sentence. He used the word "naturels" to emphasize clearly who he was defining as those who were born in the country of two citizens of the country. Also, when we read Vattel, we must understand that Vattel's use of the word "natives" in 1758 is not to be read with modern day various alternative usages of that word. You must read it in the full context of sentence 2 of section 212 to fully understand what Vattel was defining from natural law, i.e., natural born citizenship of a country. Please see the photograph of the original French for Chapter 19, Section 212, here in the original French if you have any doubts.

The text of de Vattel's treatise was translated into English more than once, some of those translations being published well before the American Revolution. None of those pre-Revolutionary translations rendered "les naturels, ou indigenes" into English as "natural born citizens" The first that did so was published in 1797, 10 years following the Constitutional Convention, 8 years following the adoption of the Constitution, and 8 years following the publication of Dr. Ramsay's essay on US citizenship—where "natural born citizen" is defined by the Founder/historian to have precisely the same meaning as the one de Vattel establishes for "les naturels, ou indigenes."

We can reasonably assume that the other Founders and Framers would have defined a “natural born Citizen” the same way that Ramsay did, for being a meticulous historian he would have gotten his definition from the general consensus that existed at the time.

And we can also reasonably conclude that the professional translator who rendered "les naturels, ou indigenes" into American English in 1798 as "natural born citizens" would have been fully aware of the occurrence of that phrase in the brand-new US Constitution, and that he had the same reasons as Dr. Ramsay to use the same definition of "natural born citizens" as was generally accepted among speakers of American English at the time.

Based on the facts and reasoning presented above, there can be no other sound conclusion but that "natural born citizen" must have been intended to have the same meaning as de Vattel defined for his term-of-art phrases "les naturels, ou indigenes." And the only way the "natural born citizen" requirement can prevent a person from having allegiance to a foreign sovereign is if its meaning is the same as the one de Vattel defined and labeled "les naturels, ou indigenes," and which a professional translator translated into English as "natural born citizen" just a few short years after the "natural born citizen" requirement was written and ratified in the new US Constitution.

The evidence from the historical record and from the text of the Constitution itself is clear, compelling and irrefutable:

  1. The reason the Constitutional Convention required that the President (and later, by Amendment, the Vice President) be a "natural born citizen" is that they were concerned that the person who would be head of State, chief executive and Commander-In-Chief of the US armed forces have absolutely no conflicts of interest, legal obligations or loyalties to any foreign sovereigns or foreign powers;
  2. A person who satisfies the definition of "natural born citizen" of the US cannot simultaneously satisfy the definition of a British "natural born subject" (so the British would have no legal pretext in the early 19th century for impressing a US "natural born citizen" into the British Navy)—this is not about whether the definitions are or are not the same, but about whether the same person who is a US "natural born citizen" could also be a British "natural born subject";
  3. "Natural born citizen" must have had a meaning other than that of "natural born subject" in the late 18th century (the meaning of "natural born subject" evolved over time; its original meaning was precisely the same as the one de Vattel defined for his term of art, "les naturels, ou indigenes");
  4. Whatever the Founders meant by "natural born citizen," it was more restrictive than "citizen," more restrictive than "born a citizen," and so restrictive that it was necessary to add an exception to the Constitution allowing those who were citizens when the Constitution was adopted to be eligible to be President, provided they satisfied all the other constraints;
  5. The only explicit definition of "natural born citizen" in the historical record that was provided by one of the Founders defines it as meaning a person born in the country to citizen parents. No testimony from any other Founder or delegate of the Constitutional Convention exists that claims any other definition.

Some nations claim you as their citizen or subject based on where your were born, some based on who your parents were (father and/or mother,) and some based on both together. By requiring that the President be born at a location where the US is sovereign, any foreign "natural law" or "law of nations" claim on the President to allegiance based on his place of birth is precluded. By requiring that the President be born to parents who are solely US citizens, any foreign "natural law" or "law of nations" claim on the President to allegiance based on his parentage is precluded.

US Supreme Court Decisions Concerning Citizenship and "Natural Born Citizens"

The Constitution vests the judicial power of the United States with the US Supreme Court. By definition, "judicial power" is the power to judge questions of law, both with respect to what the law means in general and with respect to how the law should apply to a particular set of facts and circumstances. The US Constitution names itself as a law, and therefore the Supreme Court has the power to judge its meaning and application pursuant to the Constitutional grant of judicial power to the courts of the United States. The Supreme Court ruled in 1803 that the judicial power that the US Federal courts were granted in the Constitution necessarily included the power to use the Constitution as a "meta-law" governing the meaning and validity of the actions of the President, the Congress and lower courts. That ruling is referred to as "Marbury vs. Madison," and the ruling in that case set the precedent of what has come to be called "judicial review," which is the principle that Federal courts have the power to retroactively invalidate Congressional statues by finding them in violation of the superior law known as the US Constitution.

One of the precedent-setting holdings of Marbury vs. Madison was the following:

It cannot be presumed that any clause in the Constitution is intended to be without effect, and therefore such construction is inadmissible unless the words require it. ~ Marbury v. Madison, 5 U.S. 137

That each clause of the Constitution must be consequential, and not superfluous, is one of the foundational principles of exegesis that the Supreme Court uses in interpreting the Constitution. One consequence of this principle is that the Supreme Court will not interpret a later Amendment in such a way so as to render any clauses present before that Amendment was added impotent or irrelevant, unless it is abundantly clear that such was the intent of the later Amendment—perhaps because the later Amendment explicitly states that an earlier clause is repealed, or perhaps because the later Amendment contradicts an earlier clause, and the conflict can only be resolved by assuming the implied intent was to repeal or nullify the other clause.

With that interpretive principle in mind, consider what the first clause of the Fourteenth Amendment has to say regarding US citizenship:

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.

Firstly, note that the clause says nothing about "natural born citizens"—that term does not appear. Nor does it say anything about who is or is not eligible to serve as President of the United States. It does not take away from or add to the power of Congress with respect to making naturalization rules (it does prevent Congress from denying citizenship to anyone "born in the United States, and subject to the jurisdiction thereof," but that leaves unchanged the power of Congress to naturalize whomever it pleases.). Nor does the Amendment state that it is repealing any clause in the original Constitution or in any of the subsequent Amendments. Instead, it specifies the following rules regarding Federal and State citizenship:

  1. Any person born in the United States who is also "subject to the jurisdiction thereof" is Constitutionally defined as a US citizen
  2. Any person naturalized in the United States who is also "subject to the jurisdiction thereof" is Constitutionally defined as a US citizen.
  3. A citizen of the United States is Constitutionally defined as also a citizen of the State in which he or she resides.

We know from history that this clause of the 14th Amendment was intended to accomplish the following purposes:

  1. To retroactively define as US citizens those who had recently been slaves, but whose citizenship was not recognized by the States in which they resided
  2. To prevent States from claiming that such persons were not citizens of the State in which they lived, even if they were US citizens

There is no evidence that the 14th Amendment was intended in any way to change the Constitutional qualifications for serving as US President.

Many at the time argued that the freed slaves were already citizens by natural law. Nevertheless, the Amendment was proposed and ultimately ratified because the natural law argument was not accepted by some of the States with respect to former slaves. Nevertheless, those who accepted the natural law argument did not view the 14th Amendment as granting citizenship to those who had not had it, but rather as affirming the citizenship of the former slaves in a way that could not be contested by those opposed. The point is that the Amendment was not proposed and ratified because the nation had concluded that the previous citizenship rules needed to be changed (obviously, those opposed to the idea that the former slaves should be recognized as citizens wanted no such "change"), but rather because there was such strong disagreement with respect to what the rules actually were, and how they should be applied. Note, for example, that the 14th Amendment defines anyone naturalized as a citizen pursuant to Congress' authority to make naturalization rules as a Constitutional citizen. But such persons were already "Constitutional citizens," because the Constitution grants Congress the power to grant citizenship. So in the case of naturalized citizens, the only possible effect of the 14th Amendment was to prevent States from claiming that US citizens residing in that State were not citizens of the State.

Although the Fourteenth Amendment ended the argument regarding the citizenship of the former slaves, it did not end it for other cases. Why not? Because in addition to the clear jus soli requirement established by the 14th Amendment that a person must be born in the United States in order to be a citizen, the Amendment additionally required that the person be "subject to the jurisdiction" of the United States. What does "subject to the jurisdiction" mean? That became the next disputed issue, and its resolution required a Supreme Court decision.

In 1898, the Supreme Court had to decide whether a petitioner was or was not a US citizen. It was the first such case the Court considered following the ratification of the 14th Amendment where the question of citizenship could not be decided by any means other than interpreting the first clause of the 14th Amendment. Interestingly, the text of the decision itself falsely claims that there was a prior case that had already done the same, but that claim is provably false. That's actually a crucial point, as will be shown later.

The 1898 case involved the citizenship status of Mr. Wong Kim Ark, who was born in the United States to Chinese parents who never acquired US citizenship. His citizenship was challenged both because neither of his parents were US citizens, and also because of a law restricting Chinese immigration and prohibiting immigrants from China from becoming naturalized U.S. citizens. The court decided that Wong Kim Ark was a citizen based on the first clause of the 14th Amendment, and that "subject to the jurisdiction of the United States" means a) physically present on United States soil, AND b) the person was born to parents who were private individuals not employed in any official capacity by a foreign sovereign.

The court's interpretation of "subject to the jurisdiction" has been strongly criticized on a number of grounds by those who argue that the intended meaning was "not subject to any foreign power," but that issue is not relevant to the meaning of "natural born citizen," and so will not be addressed in this essay.

The previous Supreme Court decision, which was wrongly referenced in the Wong Kim Ark decision as having used the 14th Amendment to decide a person's citizenship, is known as Minor vs. Hapersett, 88 U.S. 162. That decision did in fact use the 14th Amendment as the basis for its second principal holding concerning the right to vote, but not for its first principal holding concerning whether or not the petitioner was a US citizen (court decisions can involve multiple holdings, which are the precedent-setting decisions the court makes in order to decide the legal and/or factual issues before the court in a particular case.)

In Minor, the court held that the 14th Amendment granted no one at all any right to vote, regardless of sex, age or citizenship. Previous cases had already held that there was no Federal right to vote. The second principal holding in Minor, as well as the holdings in previous cases, are the reason that the 15th, 19th, 24th and 26th Amendments were later proposed and adopted, the language of which forbids the denial of the privilege of voting based on race, previous condition of servitude, sex or age (for those 18-years of age or older.) The 19th Amendment, for example, requires that if one sex is granted the privilege to vote, the other sex must be granted that same privilege equally.

But the court in Minor determined that before it could decide the issue of whether the petitioner (who was an adult White woman) had any Federal right to vote based on the 14th Amendment, it first had to decide whether or not she was a citizen, and if so on what basis? Understanding why the court approached the issue that way is crucial: Firstly, if women as a class be not US citizens, then the second clause of the 14th Amendment that forbids States from denying citizens any privileges of US citizens would not apply to them, since it only applies to those who are US citizens. Secondly, the court was concerned with whether or not the citizenship of women as a class depended on the 14th Amendment. In other words, the question was whether or not, in the absence of the 14th Amendment, would any women at all be citizens? That second issue mattered for two reasons:

  1. The legal principle known as judicial restraint:
    If women as a class were not citizens before the adoption of the 14th Amendment, then the Court would have to decide whether the first clause of the 14th Amendment granted women "born in the US and subject to the jurisdiction thereof" US citizenship. But if the woman who was the petitioner in the case at hand could be held to be a US citizen even without applying the first clause of the 14th Amendment, then the principle of judicial restraint would behoove the Court to avoid deciding whether or not the 14th Amendment grants any women US citizenship. Judicial restraint requires that courts not make precedent-setting holdings when the issues in a case do not require it.

    The court has always interpreted the principle of judicial restraint as sufficient reason to use the original (unamended) text of the Constitution before relying on the text of any subsequent Amendments, if such is possible. That's especially true in the absence of any prior precedents based on a particular clause of the Constitution. They seek to avoid making a "first instance" interpretation of any clause when there are other precedents that can be used instead (where it can be shown that no reasonable meaning of the unused clause could possibly change the outcome.) In this case, since the 14th Amendment definitely did not deprive anyone of citizenship, there was no reason to rely on its first clause to determine citizenship, if it could be determined that the petitioner was a citizen based on the original text of the Constitution.

  2. The court reasoned that, if women can be citizens without applying the 14th Amendment, then the 14th Amendment cannot fairly be interpreted as granting them any rights or privileges of citizenship that they have not always possessed, even before the ratification of that Amendment. In fact, this is the crucial point the court relied on in order to reach its second principal holding (that the 14th Amendment did not grant anyone the right to vote)! In the words of the court in Minor:

    It is clear, therefore, we think, that the Constitution has not added the right of suffrage to the privileges and immunities of citizenship as they existed at the time it was adopted. This makes it proper to inquire whether suffrage was coextensive with the citizenship of the States at the time of its adoption. If it was, then it may with force be argued that suffrage was one of the rights which belonged to citizenship, and in the enjoyment of which every citizen must be protected. But if it was not, the contrary may with propriety be assumed. [pp. 171, 172]

The Court in Minor held that the petitioner was in fact a US citizen, and had been such from birth, before the ratification of the 14th Amendment. The reasoning the Court used to reach that holding is actually central to the question of the Supreme Court's definition of "natural born citizen," and so we will soon examine that reasoning (and the Court's definition of "natural born citizen") in more detail. But before we do, let us first consider another issue: Is what this essay asserts to be a holding in Minor that the petitioner was a US citizen based on the original (unamended) text of the Constitution (and in fact had been such since birth, before the ratification of the 14th Amendment) actually a precedent-setting holding? Or was it, as has been claimed elsewhere, merely dictum, and therefore not binding US Supreme Court precedent?

To answer that question, we first refer to the most recent Supreme Court precedent regarding the principles to be used to distinguish between dicta and holdings that establish binding precedents, which can be found in a case decided in 1996 known as Ogilvie Et Al., Minors v. United States, 519 U.S. 79 (1996). Justice Breyer's majority opinion in that case stated that when the Court discusses a certain “…reason as an ‘independent’ ground in support of our decision”, then that reasoning is not simply dictum:

“Although we gave other reasons for our holding in Schleier as well, we explicitly labeled this reason an ‘independent’ ground in support of our decision, id., at 334. We cannot accept petitioners’ claim that it was simply a dictum.”

The syllabus of the Minor case lists the following as one of the holdings:

2. In that sense, women, of born of citizen parents within the jurisdiction of the United States, have always been considered citizens of the United States, as much so before the adoption of the fourteenth amendment to the Constitution as since.

The fact that that decision is listed in the syllabus of the case is evidence that the Court considered its decision on the citizenship question to be a precedent-setting holding, and not a dictum.

The fact that the Minor court used the fact that the petitioner was a US citizen without recourse to the first clause of the 14th Amendment as one of the independent grounds for their other principal holding regarding the right to vote makes that decision a precedent-setting holding, according the principles established in Ogilvie.

Therefore, the citizenship holding in Minor is binding US Supreme Court precedent. Although the second principal holding regarding the right to vote was later mooted by the 19th Amendment, the first principal holding regarding the basis for establishing US citizenship without any reliance on the 14th Amendment still stands as binding Supreme Court precedent which has never been overturned nor obviated by subsequent Amendments to the Constitution.

The reason this is so important is because in the Minor decision, the Supreme Court didn't just decide that a woman was a citizen, it made that decision by providing its official interpretation of the phrase "natural born citizen," specifically referencing the qualifications to be US President from Article II section 1, and then applying the definition of "natural born citizen" to the petitioner and coming to the conclusion that she satisfies all the conditions to be a "natural born citizen." Here's the text:

Additions might always be made to the citizenship of the United States in two ways: first, by birth, and second, by naturalization. This is apparent from the Constitution itself, for it provides [n6] that "no person except a natural-born citizen, or a citizen of the United States at the time of the adoption of the Constitution, shall be eligible to the office of President," [n7] and that Congress shall have power "to establish a uniform rule of naturalization." Thus new citizens may be born or they may be created by naturalization.

The Constitution does not, in words, say who shall be natural-born citizens. Resort must be had elsewhere to ascertain that. At common-law, with the nomenclature of which the framers of the Constitution were familiar, it was never doubted that all children born in a country of parents who were its citizens became themselves, upon their birth, citizens also. These were natives, or natural-born citizens, as distinguished from aliens or foreigners. ...

So there it is. In plain, unambiguous language. The Supreme Court defined "natural born citizens" as "all children born in a country of parents who were its citizens." It should be noted that, at the time, wives were deemed to automatically acquire the citizenship of their husbands, and out-of-wedlock births were relatively rare. So the issue of children born to parents who didn't share the same citizenship would have been uncommon. But the Court did not need to worry about that issue in Minor, because the petitioner was born in the US to parents both of whom were citizens. The Court, by finding that the petitioner was a "natural born citizen," necessarily also established that the petitioner was a citizen, without any need to consider the first clause of the 14th Amendment. For that reason, the fact that, even before the ratification of the 14th Amendment, there would be many who would have been citizens but not "natural born citizens," was not an issue before the Court, and so was not an issue that the Court needed to consider or resolve.

Note that the Court states that "natural born citizens" are distinct from "aliens or foreigners." That's actually a very important semantic distinction. The legal definition of alien is "a person who owes political allegiance to another country or is not a native or citizen of the land in which they live," and a foreigner is ""one who is from a foreign country or place." Note that someone who is a citizen of the United States could be also an alien, if he or she retains or acquires foreign citizenship, and could also be a foreigner if he or she was born outside the United States—even if the person no longer had any foreign citizenship. Note also that a US citizen born in the US could become an alien simply by acquiring foreign citizenship. So the fact that the Supreme Court has defined "natural born citizens" as distinct from "aliens or foreigners" excludes anyone who either has foreign citizenship or was not born in the United States from qualifying as a "natural born citizen."

The Court, in the interest of completeness, does continue to discuss the fact that yet other persons could be citizens who didn't qualify as "natural born citizens," but that discussion is dicta, because it was not used as grounds for any of their holdings in the case. But they also explicitly state that such questions have no relevance to the case before them. The issue on which the court was focusing was whether or nor the petitioner was a citizen regardless of the first clause of the 14th Amendment. The definition of "natural born subject" was relevant solely because a) Article II, section 1 establishes "natural born citizen" as the strictest class of citizenship, and b) anyone who qualifies as a "natural born citizen" necessarily qualifies as a citizen. So the Court immediately continued (starting with the next sentence following the immediately preceding quote from the Minor decision):

… Some authorities go further and include as citizens [Note, not as "natural born citizens"] children born within the jurisdiction without reference to the citizenship of their parents. As to this class there have been doubts [regarding citizenship, but not regarding "natural born citizenship"], but never as to the first [because anyone who qualifies as a "natural born citizen" is a citizen beyond dispute]. For the purposes of this case it is not necessary to solve these doubts. It is sufficient for everything we have now to consider that all children born of citizen parents within the jurisdiction are themselves citizens. The words "all children" are certainly as comprehensive, when used in this connection, as "all persons," and if females are included in the last they must be in the first. That they are included in the last is not denied. In fact the whole argument of the plaintiffs proceeds upon that idea.

So the Supreme Court notes in passing (dicta) that those who satisfy some, but not all, of the qualifications of a "natural born citizen" may nevertheless qualify as citizens. But since the petitioner satisfied the definition of a "natural born citizen," there was no need to consider whether any lesser standards of citizenship could be used to assign citizenship, with our without recourse to the 14th Amendment. Therefore, they exercised proper judicial restraint and left those questions undecided.

Note also that, since the citizenship issue in Minor was decided by defining "natural born citizen" based on the text of Article II, section 1, but the citizenship issue in Wong Kim Ark was decided based on the first clause of the 14th Amendment, the two decisions do not conflict with each other. Therefore, Wong Kim Ark does not supersede Minor.

It is worth noting that, had the petitioner in Wong Kim Ark been a "natural born citizen," failure to simply use the precedent established in Minor to rule that Wong Kim Ark was a citizen would have been a failure to abide by judicial restraint. The fact that the Wong Kim Ark Court, unlike the Minor Court, decided that it was necessary to decide the citizenship issue using the first clause of the 14th Amendment, instead of using the "natural born citizen" clause, demonstrates that a person who satisfies the 14th Amendment's qualifications for citizenship does not necessarily qualify as a "natural born citizen." The only reason to make a "first instance" interpretation of the first clause of the 14th Amendment would be because the question could not be settled using any existing precedent, such as the one in Minor.

The settled law of the land is that the US President must be a natural born citizen, and that to be a natural born citizen, you must have been born in the United States to parents both of whom were US citizens when you were born.

You may disagree with the goal of the Constitutional Convention, and/or with the means they chose to achieve it. But it's not a technicality, not an anachronism no longer relevant in modern times, nor is it racist. Especially in modern times, it enables persons of any race or ethnic heritage to become President. And it's what the Constitution requires.

You may also disagree with binding precedent regarding the meaning of "natural born citizen" as established in Minor. But in our system, the Constitution, and the Supreme Court's interpretation of it, are the "supreme law of the land." And if one faction gets to disregard the Constitution and/or the Supreme Court because they disagree, then that sets a precedent where all other factions can do the same. And get away with it. Is that really what you want?



The Semantics Of Natural Born Subject In English Common Law

During the 17th and 18th centuries, the term "natural born" had a general meaning and a specific meaning (see below for substantiation.) In the general sense, all English subjects (except denizens) -- including foreign-born and naturalized subjects -- were called "natural-born," regardless of how or when they acquired their English subjecthood. Nearly all children born on English soil, including children of alien parents, were natural-born in the general sense. However, in the specific sense, "natural born" referred only to persons who were born within the sovereign's territory, of parents who were under the sovereign's actual obedience or allegiance (see below for substantiation). Such persons, at birth, owed natural allegiance to the English king exclusively, and did not (at birth) owe allegiance to any other sovereign.

The modern-day mainstream consensus is that "natural born" should be understood according to its general sense, which means that anyone born on U.S. soil is a natural born citizen. However, multiple historical sources (and the arguments and evidence I have already made and presented above) comprehensively and irrefutably indicate that, when the Constitution was written, "natural born," as used in "natural born citizen," was understood according to its specific sense, not its general sense.

What was an 18th-century English "subject"?

During the 18th century, the population of England and its colonies was divided into three categories: foreigners, aliens, and subjects. The difference among them was their allegiance. Subjects owed permanent allegiance to the English king; aliens owed temporary (local) allegiance; and foreigners did not owe any allegiance.

Allegiance—sometimes called ligeance and, at other times, also called obedience—was faith, loyalty and service that someone owed to the king, in return for the king's governance and protection.

Subjects and aliens were collectively referred to as the people of England. The people did not include foreigners.

Prior to the American Revolution, the words subject and citizen had separate and distinct meanings. The two were not synonymous. In 18th-century England and its colonies, some—but not all—English subjects were also English citizens.

Every English subject was either a denizen or a natural-born subject.

Subjects had property rights; aliens and foreigners did not. Subjects could acquire and hold real (non-movable) property such as land, and bequeath it to their heirs. Aliens and foreigners were not permitted to possess English real estate, other than a house or apartment for their own personal habitation.

Foreigners: Foreigners were foreign citizens or subjects who had no intention of making England their "home". They were living in England, but had no intention of becoming a part of English society. Foreigners included members of foreign-controlled religious orders, ambassadors from foreign countries, members of foreign royalty, and foreign merchants visiting English territory solely for trade or business. (Berry). Foreigners did not owe allegiance to the English king, and were not under his protection. Nevertheless, the king provided safe conduct for most foreigners.

Aliens: An alien was a foreign citizen or subject who had established residence, or domicile, on English soil (Berry). While living within the king's realm, alien friends owed temporary ("local") allegiance to the king and were under the king's protection. When an alien friend departed from English territory, her or his allegiance to the king automatically terminated. Alien enemies were citizens or subjects of a foreign country that was hostile towards England. They, like foreigners, did not owe any allegiance to the king and were not under the king's protection.

Denizens: During the early 1600s, the word "denizen" had a broad and general meaning. It referred to anyone who became an English subject by artificial means, such as a public or private act of Parliament, letters patent issued by the king, or military conquest:

[The] denization of an alien may be effected three manner of wayes: by Parliament, as it was in 3 Hen. 6. 55. in Dower; by letters patents, as the usual manner is; and by conquest, as if the King and his subjects should conquer another Kingdome or dominion ... (Coke(1608), p.178)

By the time the U.S. Constitution was written in 1787, the word "denizen" had acquired a more narrow and specific meaning. It referred only to persons who became English subjects by acts of the king (letters patent or military conquest). Persons who became subjects by parliamentary statute or naturalization were no longer called "denizens"; instead, they were called "natural born subjects."

Natural-Born Subjects: A natural-born subject was anyone who acquired subjecthood either by birth or by act of Parliament. When the U.S. Constitution was being written, all English subjects—except persons who were made denizens by the king—were called natural-born subjects. Actual natural-born subjects were subjects by "nature and birthright". They were born on English soil, to parents who were under the king's "actual obedience". All other natural-born subjects were naturalized; they acquired English subjecthood by a public or private act of Parliament; they were deemed to be natural-born subjects by law but were not natural-born subjects in fact.

This is authoritatively established by Francis Bacon (Case of the Post-Nati of Scotland, 1608. Also, James Spedding, Works of Francis Bacon, Volume XV.) In Bacon's view, there were four categories or "degrees" of persons: 1) alien enemies, 2) alien friends, 3) denizens, and 4) natural-born subjects. Persons became natural-born subjects either by birth or by acts of Parliament, but not by denization (first 3 definitions omitted as not relevant):

The fourth and last degree is a natural born subject, which is evermore by birth, or by act of parliament; and he is complete and entire.

So, just as we in the US have found it necessary to distinguish between Constitutional "natural born citizens" and statutory "natural born citizens", the Brithish found it necessary to distinguish between by birth or actual "natural born subjects" and statutory (by act of Parliament) "natural born subjects."

Ways of becoming a subject: A person became an English subject either naturally (by natural law) or artificially (by human action or man-made law). Persons who were subjects by natural law were called subjects born. Persons who received subjectood artificially (from Parliament or the king) were called subjects made.

Every subject is either natus, born, or datus, given or made (Coke (1608), p.206)

Except in special cases, a child was a subject born (a subject by natural law) if it met two requirements at the time of its birth: a birthplace requirement (the child had to be born within the king's realm), and a parental obedience requirement (the child's parents had to be under the "actual obedience" of the king):

There be regularly (unless it be in special cases) three incidents to a subject born. 1. That the parents be under the actual obedience of the King. 2. That the place of his birth be within the King's dominion. And, 3. The time of his birth is chiefly to be considered; for he cannot be a subject born of one kingdom that was born under the ligeance of a King of another kingdom, albeit afterwards one kingdom descend to the King of the other. (Coke (1608), p.208)

Statute: Parliament may enact laws which automatically naturalize certain children at birth. Such laws were sometimes called public acts of Parliament. By the time William Blackstone (1723-1780) wrote his Commentaries (1765-1769), Parliament had enacted laws which conferred subjecthood, at birth, to foreign-born children of English fathers:

...all children, born out of the king's ligeance [territory], 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. (Blackstone)

A law, enacted in 1604, declared English-born children of alien parents to be "denizens" (in the general sense):

To place the Children, born within this Realm, of foreign Parents, in Degree for the first Birth or Descent only, as Aliens made Denizens, and not otherwise. (House of Commons Journal, Volume 1, 21 April 1604)

Foreign-born children of English fathers, and English-born children of alien parents, were naturalized at birth, by English law:

Furthermore as the law of England must favor naturalization as a branch of the law of nature, so it appears manifestly, that it doth favour it accordingly. For it is not much to make a subject naturalized by the law of England: it should suffice, either place or parents. If he be born in England it is no matter though his parents be Spaniards, or what you will: on the other side, if he be born of English parents it skilleth not though he be born in Spain, or in any other place of the world. In such sort doth the law of England open her lap to receive in people to be naturalized; which indeed sheweth the wisdom and excellent composition of our law ... (Bacon, Francis, pp.664-665)

Naturalization: An alien adult could become an English subject through a legal process called "naturalization," also called a private act of Parliament. Person who were naturalized in this manner acquired the same rights as subjects born, but could not hold public office. Subjecthood by naturalization was available only to Christians who took the Oath of Supremacy and Oath of Allegiance (see English Oaths, 1642). Naturalization had a retroactive effect. When someone became a naturalized subject, all of his children received property and inheritance rights, even if they were born prior to the act of naturalization:

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. (Blackstone)

Aliens could earn naturalization by (a) serving two years on an English warship during time of war, (b) serving three years on an English whaling vessel, (c) residing seven years on an English-run plantation, or (b) serving two years in America (Cunningham, Law Dictionary, Volume 2, 1771, section titled "naturalization").

Denization by the King: The king had the authority to issue letters patent to aliens, thereby transforming them into denizens (in the specific sense). The rights of denizens were limited by the terms and conditions of the letters patent, which varied from person to person. Denization was not retroactive. It did not confer any rights to children which were born prior to their fathers' denization:

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 [children] of a denizen, born before denization, cannot inherit to him; but his issue [children] born after, may. A denizen is not excused from paying the alien's duty, and some other mercantile burdens. 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. (Blackstone)

Summary: The population of England and its colonies was divided into three categories: foreigners, aliens and subjects. Subjects owed permanent allegiance to the king; aliens owed temporary (local) allegiance to the king; and foreigners did not owe any allegiance to the king.

There were two kinds of English subjects: subjects born and subjects made.

Subjects born were subjects "by nature and birthright". They were actual natural-born subjects. They were born on English soil, to parents who were under the "actual obedience" of the king.

Subjects made acquired subjecthood either from Parliament or from the king. Those who acquired subjecthood from the king were called denizens. Those who acquired subjecthood from public or private acts of Parliament were naturalized (as opposed to actual) natural-born subjects.

A public act of Parliament was a statute which granted subjecthood automatically to anyone who met certain criteria. Public acts included laws which conferred subjecthood, at birth, to foreign-born children of English fathers and to English-born children of alien parents.

A private act of Parliament, also called "naturalization," was a legal process which conferred subjecthood to a specific individual or group.

All English subjects, except persons made denizens by the king, were called "natural-born subjects". However, only subjects born were actual natural-born subjects. All other natural-born subjects were naturalized; they were deemed natural-born by law but were not so in fact.

All English subjects had property rights. They could acquire and possess English real estate and bequeath it to their heirs. Aliens and foreigners could own movable property, but could not hold unmovable property except a house or apartment for their own personal habitation.

Conclusion

From the above, it should be emphatically evident that the term of art in British law "natural born subject" has a very complex set of meanings that are very specific to the needs and realities of British culture and society. It's ostensive meaning in specific usages was dependent on context.

If "natural born citzen" is totally analogous to "natural born subject" other than for the difference between a subject and a citizen, then its meaning includes both subject born and subject made. In which case, the Constitutional grant of power to Congress to define uniform rules of naturalization would give them the power to make even naturalized citizens eligible to be President, in contradiction to the universal understanding of Article II, section 1, pa. 5 from the 1787 up to the present. Exactly as I argued above. So that cannot be the intended meaning.

However, if "natural born citizen" means a subject born, then that meaning matches exactly with the definition of "les naturels, ou indigenes" as defined by de Vattel.


TOPICS: Constitution/Conservatism; Your Opinion/Questions
KEYWORDS: certifigate; citizen; constitution; july2011; naturalborn; naturalborncitizen
Navigation: use the links below to view more comments.
first previous 1-20 ... 81-100101-120121-140141-157 next last
To: dupree

Barack Obama aka Barry Soetoto aka Steve Dunham was a very serious mistake that will not be allowed to happen again.


121 posted on 07/05/2011 6:52:57 AM PDT by Georgia Girl 2 (The only purpose of a pistol is to fight your way back to the rifle you should never have dropped.)
[ Post Reply | Private Reply | To 110 | View Replies]

To: sourcery; edge919

You can continue on in your delusion that Minor defined NBC, but there isn’t a court in the land that will follow your delusions. Nor is there a single state or state DA that will follow it. Nor has any Congressman, any one of which could have raised an objection to Obama’s election.

The plain English of the one paragraph in the decision is that they did NOT try to determine the meaning of NBC, beyond applying it to the woman in the case, who had citizen parents.

WKA most definitely DID apply it to a man born of Chinese parents. They did not spend half of the decision discussing something totally irrelevant. And the dissent recognized the meaning, complaining that the decision would allow the child of a tourist to become President.

Can I make you understand that? No.

But what you should be able to understand is that your essay was full of BS. Naturalized citizens are not NBC, not have they ever been held to be that under the law. And while you can pretend Minor defines NBC, or that it was not a known term PRIOR to the Constitution, no court will ever agree. Indeed, the idea that the Founders used a term no one had ever heard of or knew the meaning of in the Constitution is just stupid.

If you would be honest, WKA gives a good but partial summary of the history of the term NBC. Lynch in 1844 went into more detail, but no court has ever found that the citizenship of the parents impacts the citizenship of the child under US law, if the child was born here.

But you go on with your delusions. You will anyway, you won’t get anywhere because no court has or ever will agree with you.

“The Constititional Convention didn’t include a definition of “natural born citizen” precisely because they didn’t see themselves as in the dictionary business, and because their understanding of the law of nations meant that there was a natural definition of that term which was (in their view) based on reason and first principles, and which their ethic impelled them to leave in that state.”

No, they didn’t define it because the meaning was well established, and known by the states that had started using NBC as a word for word replacement of NBS in their own citizenship laws. The Founders were not following a bad translation of Vattel made in 1797, but common legal use at the time of the writing.


122 posted on 07/05/2011 6:54:10 AM PDT by Mr Rogers (Poor history is better than good fiction, and anything with lots of horses is better still)
[ Post Reply | Private Reply | To 112 | View Replies]

To: The Big T

Wow, and delusional to boot! So far, you’re the perfect profile of a democrat agitprop obamanoid.


123 posted on 07/05/2011 7:25:41 AM PDT by MHGinTN (Some, believing they can't be deceived, it's nigh impossible to convince them when they're deceived.)
[ Post Reply | Private Reply | To 100 | View Replies]

To: BladeBryan

“Constitutional Scholar” - talk about an undefined term.

Reading of legal verbiage is not a black art.

In fact, here is the total ruling of the Indiana Appeals Court - if you bother to actually read it.

“Affirmed”.

All the rest of what they pontificated and spewed out was (bad) justification to apply that one, single word to the lower court ruling. And that lower court ruling did not deal with Constitutionality or natural born Citizenship at all.

The geniuses at the White House obviously faxed this Hoosier judge his words. They are the same geniuses who could not even get Obama seniors age correct on the LFBC. Anyone helping these geniuses probably needs a good lawyer. Soon.


124 posted on 07/05/2011 7:26:01 AM PDT by bluecat6 ( "A non-denial denial. They doubt our heritage, but they don't say the story is not accurate.")
[ Post Reply | Private Reply | To 106 | View Replies]

To: Georgia Girl 2
The mind of a liberal/profressive is twisted, so that anything, literally, is legal if you don't get caught. It is easy to refute such idiocy by merely citing that just because someone gets away with robbing a bank by not getting caught and prosecuted doesn't make robbing banks legal.

When you show the fools that their reasoning is terribly flawed, the most heard come back is 'but'. Their presence at FR in service to their masters is however instructional.

125 posted on 07/05/2011 7:35:26 AM PDT by MHGinTN (Some, believing they can't be deceived, it's nigh impossible to convince them when they're deceived.)
[ Post Reply | Private Reply | To 121 | View Replies]

To: sourcery

Also, remember that the explicit term “natural born Citizen” was included (though not actually ‘defined’) in the immigration act of 1790.

It is the only time the term - in explicit text that exactly matched the Constitution - has ever been in codified law.

Some, including the authors of SR 511, have incorrectly cited that the act ‘defines’ natural born Citizen. It does not. But does provide one of the key factor to allow a non natural born Citizen to be ‘considered’ (but not exactly) a natural born Citizen. To be ‘considered’ a natural born Citizen one had to have parents who were citizens.

This tells us jus sanguinis was considered the strong of the two methods used to grant citizenship at birth. But if jus sanguinis was all that was needed then there would be no need for this passage to be in an ‘immigration act’ for the purpose of ‘naturalizing’ citizens. So there had to be more.

The more, of course, is jus soli. The act does no call this out in any manner but the logic is simple. Obviously buy indicating one born overseas of two parents is allowed to be ‘considered as’ natural born. Had they heen born jus soli and still been born to two citizen parents they would ACTUALLY BE a natural born Citizen and there would be no need for the passage in the act. And this matches Minors definition.

So, in codified US law from 1790 to 1795, you have a codified law that matches the Minor ruling definition perfectly. In fact it does such a good job that the Senate of the US cited the act in SR 511 to legitimize the eligibility of McCain.

Two citizen parents....this is a critical component of a natural born Citizen.


126 posted on 07/05/2011 7:45:03 AM PDT by bluecat6 ( "A non-denial denial. They doubt our heritage, but they don't say the story is not accurate.")
[ Post Reply | Private Reply | To 118 | View Replies]

To: MHGinTN

Yes I have noticed a lot of trolls on the eligibility threads.


127 posted on 07/05/2011 8:15:02 AM PDT by Georgia Girl 2 (The only purpose of a pistol is to fight your way back to the rifle you should never have dropped.)
[ Post Reply | Private Reply | To 125 | View Replies]

To: Mr Rogers
You can continue on in your delusion that Minor defined NBC, but there isn’t a court in the land that will follow your delusions. Nor is there a single state or state DA that will follow it. Nor has any Congressman, any one of which could have raised an objection to Obama’s election. The plain English of the one paragraph in the decision is that they did NOT try to determine the meaning of NBC, beyond applying it to the woman in the case, who had citizen parents.

This is the plain English used in the Minor decision: all children born in the country to parents who were its citizens ... These were the natives, or natural born citizens, AS DISTINGUISHED FROM ALIENS OR FOREIGNERS. The court CLEARLY says if you don't meet the definition of NBC, you are by nature considered an alien or foreigner. Other laws and/or circumstances have to be considered in order for such a person to be a citizen, which is why the court briefly reviews naturalization laws during the next couple of paragraphs. In Virginia Minor's case, the court said that as a woman (which represents a class of individuals) her citizenship did not rely on the 14th amendment as long as she was a natural born citizen. WKA was not a NBC and relied not only on the 14th amendment, but upon a residence and domicil requirement of the parents, as was lengthily explained by Gray. Minor was an NBC. Ark was not.

128 posted on 07/05/2011 8:24:41 AM PDT by edge919
[ Post Reply | Private Reply | To 122 | View Replies]

To: edge919

“WKA was not a NBC and relied not only on the 14th amendment, but upon a residence and domicil requirement of the parents, as was lengthily explained by Gray.”

No. WKA did NOT spend half the decision discussing the meaning of NBC/NBS if they all agreed, per your interpretation of Minor, that WKA was NOT a NBC.

You do not write half of a decision on something that has absolutely no relevance to the decision.

And the dissent understood that, as have all subsequent court decisions:

“Considering the circumstances surrounding the framing of the Constitution, I submit that it is unreasonable to conclude that “natural-born citizen” applied to everybody born within the geographical tract known as the United States, irrespective of circumstances, and that the children of foreigners, happening to be born to them while passing through the country, whether of royal parentage or not, or whether of the Mongolian, Malay or other race, were eligible to the Presidency, while children of our citizens, born abroad, were not.”

http://www.law.cornell.edu/supct/html/historics/USSC_CR_0169_0649_ZD.html

I know I will never convince you, just as you will never get a court to agree with your wacky legal theory that Minor excluded from NBC anyone whose parents were not citizens.

But you ARE a wacko, legally speaking. No one agrees with you - not in the courts, not in the legislatures, and not in the executive branch of any state.


129 posted on 07/05/2011 9:53:11 AM PDT by Mr Rogers (Poor history is better than good fiction, and anything with lots of horses is better still)
[ Post Reply | Private Reply | To 128 | View Replies]

To: no dems

What about Rick Santorum? He’s actually running. If a candidate’s parents’ citizenship is Constitutionally significant, why does no one care whether Santorum’s dad was a citizen or not?


130 posted on 07/05/2011 12:19:17 PM PDT by Vickery2010
[ Post Reply | Private Reply | To 2 | View Replies]

To: sourcery
It cannot be assumed that Jay knew which plans had already been rejected. Technically, he wasn’t supposed to know about any of them. The Convention was operating under a veil of secrecy, which apparently wasn’t fully respected.

And yet you based your original argument on the assumption that Jay was responding directly to the exact wording of the proposal.

131 posted on 07/05/2011 12:20:56 PM PDT by Kleon
[ Post Reply | Private Reply | To 59 | View Replies]

To: Mr Rogers
No. WKA did NOT spend half the decision discussing the meaning of NBC/NBS if they all agreed, per your interpretation of Minor, that WKA was NOT a NBC.

WKA didn't spend "half the decision" discussing the meaning of NBC. That was summed in about three paragraphs by quoting and affirming the Minor decision: all children born in the country to parents who were its citizens. These were the natural born citizens AS DISTINGUISHED FROM ALIENS OR FOREIGNERS. The rest of the citations about "natural born subject" was cited to give teeth to the 14th amendment. The last half of the decision was spent discussing permanent residence and domicil and how that helps fulfill the subject clause of the 14th amendment.

And the dissent understood that, as have all subsequent court decisions:

Fail. The dissension was not responding to anything that was written in the opinion of the court. What you cited was responding to the lower court's decision in which Ark's attorney cited a case where a similar plaintiff claimed to be a natural born citizen under similar circumstances. The majority opinion ignored this claim and focused only on a citizenship question that was DEPENDENT on the residence and domicil question: "The question presented by the record is whether a child born in the United States, of parents of Chinese descent, who, at the time of his birth, are subjects of the Emperor of China, but have a permanent domicil and residence in the United States, and are there carrying on business, and are not employed in any diplomatic or official capacity under the Emperor of China, becomes at the time of his birth a citizen of the United States by virtue of the first clause of the Fourteenth Amendment of the Constitution ..." Do you understand that last part?? It's about the birth clause in the 14th amendment and NOT about natural born citizenship as Justice Waite said that NBCs were EXCLUDED from the birth clause of the 14th amendment.

Namecalling, by the way, doesn't make your ridiculous distortion of these SCOTUS opinions accurate.

132 posted on 07/05/2011 12:38:34 PM PDT by edge919
[ Post Reply | Private Reply | To 129 | View Replies]

To: Mr Rogers

“You can continue on in your delusion that Minor defined NBC”

I saw on WND where Dr. Corsi said that he discovered Minor while researching his book, and he says it’s the only case on point.

http://www.wnd.com/index.php?fa=PAGE.view&pageId=313665

But when I did a search of the book on Amazon, there are no results for Minor. I get results for Wong Kim Ark and Elk v Wilkins, but nothing for Minor.

Can anyone with the book confirm this? I find it strange that he would say it’s the most important case, even though he never mentions it in the book.


133 posted on 07/05/2011 12:39:06 PM PDT by Vickery2010
[ Post Reply | Private Reply | To 122 | View Replies]

To: edge919
One correction to this previous post. It was Justice Gray, not Waite, who said the SCOTUS was "committed to the view that all children born in the United States of citizens or subjects of foreign States were excluded from the operation of the first sentence of the Fourteenth Amendment ..." "All children born in the United States of citizens" = NBCs.
134 posted on 07/05/2011 12:47:55 PM PDT by edge919
[ Post Reply | Private Reply | To 132 | View Replies]

To: sourcery
Who decided in Minor that it means "born in the US to parents who were citizens."

I've said this before, to no avail, but you seem like a generally smart guy, so maybe you'll get it: have you ever heard of necessary vs. sufficient conditions? Here are a couple of definitions:

A sufficient condition for some state of affairs S is a condition that, if satisfied, guarantees that S obtains.
A necessary condition for some state of affairs S is a condition that must be satisfied in order for S to obtain.
Now, read the "definition" in Minor: "it was never doubted that all children born in a country of parents who were its citizens became themselves, upon their birth, citizens also." In other words, being born in a country of citizen parents is undoubtedly enough to make one a citizen at birth--it's a sufficient condition. But for your argument to be valid, you have to construe it as a necessary condition, and the language doesn't support that. For that they would have had to write something like "it was never doubted that only children born in a country of parents who were its citizens became themselves, upon their birth, citizens also"--a very simple change, and yet wording they didn't choose. Why is that, if the distinction is so important?

To use an example I've used before: it's as though I said "there is no doubt that all the people I work with are invited to my party." Does that mean nobody else can come? No, of course not.

135 posted on 07/05/2011 12:57:11 PM PDT by Ha Ha Thats Very Logical
[ Post Reply | Private Reply | To 99 | View Replies]

To: edge919

Yeah, WKA didn’t address it:

I. In construing any act of legislation, whether a statute enacted by the legislature or a constitution established by the people as the supreme law of the land, regard is to be had not only to all parts of the act itself, and of any former act of the same lawmaking power of which the act in question is an amendment, but also to the condition and to the history [p654] of the law as previously existing, and in the light of which the new act must be read and interpreted.

The Constitution of the United States, as originally adopted, uses the words “citizen of the United States,” and “natural-born citizen of the United States.” By the original Constitution, every representative in Congress is required to have been “seven years a citizen of the United States,” and every Senator to have been “nine years a citizen of the United States.” and “no person except a natural-born citizen, or a citizen of the United States at the time of the adoption of this Constitution, shall be eligible to the office of President.” The Fourteenth Article of Amendment, besides declaring that

all persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside,

also declares that

no State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

And the Fifteenth Article of Amendment declares that

the right of citizens of the United States to vote shall not be denied or abridged by the United States, or by any State, on account of race, color or previous condition of servitude.

The Constitution nowhere defines the meaning of these words, either by way of inclusion or of exclusion, except insofar as this is done by the affirmative declaration that “all persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States.” In this as in other respects, it must be interpreted in the light of the common law, the principles and history of which were familiarly known to the framers of the Constitution. Minor v. Happersett, 21 Wall. 162; Ex parte Wilson, 114 U.S. 417, 422; Boyd v. United States, 116 U.S. 616, 624, 625; Smith v. Alabama, 124 U.S. 465. The language of the Constitution, as has been well said, could not be understood without reference to the common law. Kent Com. 336; Bradley, J., in Moore v. United States, 91 U.S. 270, 274. [p655]

In Minor v. Happersett, Chief Justice Waite, when construing, in behalf of the court, the very provision of the Fourteenth Amendment now in question, said: “The Constitution does not, in words, say who shall be natural-born citizens. Resort must be had elsewhere to ascertain that.” And he proceeded to resort to the common law as an aid in the construction of this provision. 21 Wall. 167.

In Smith v. Alabama, Mr. Justice Matthews, delivering the judgment of the court, said:

There is no common law of the United States, in the sense of a national customary law, distinct from the common law of England as adopted by the several States each for itself, applied as its local law, and subject to such alteration as may be provided by its own statutes. . . . There is, however, one clear exception to the statement that there is no national common law. The interpretation of the Constitution of the United States is necessarily influenced by the fact that its provisions are framed in the language of the English common law, and are to be read in the light of its history.

124 U.S. 478.

II. The fundamental principle of the common law with regard to English nationality was birth within the allegiance, also called “ligealty,” “obedience,” “faith,” or “power” of the King. The principle embraced all persons born within the King’s allegiance and subject to his protection. Such allegiance and protection were mutual — as expressed in the maxim protectio trahit subjectionem, et subjectio protectionem — and were not restricted to natural-born subjects and naturalized subjects, or to those who had taken an oath of allegiance, but were predicable of aliens in amity so long as they were within the kingdom. Children, born in England, of such aliens were therefore natural-born subjects. But the children, born within the realm, of foreign ambassadors, or the children of alien enemies, born during and within their hostile occupation of part of the King’s dominions, were not natural-born subjects because not born within the allegiance, the obedience, or the power, or, as would be said at this day, within the jurisdiction, of the King.

This fundamental principle, with these qualifications or [p656] explanations of it, was clearly, though quaintly, stated in the leading case, known as Calvin’s Case, or the Case of the Postnati, decided in 1608, after a hearing in the Exchequer Chamber before the Lord Chancellor and all the Judges of England, and reported by Lord Coke and by Lord Ellesmere. Calvin’s Case, 7 Rep. 1, 4b-6a, 18a, 18b; Ellesmere on Postnati, 62-64; S.C., 2 Howell’s State Trials, 559, 607, 613-617, 639, 640, 659, 679.

The English authorities ever since are to the like effect. Co.Lit. 8a, 128b, Lord Hale, in Hargrave’s Law Tracts, 210, an in 1 Hale P.C. 61, 62; 1 Bl.Com. 366, 369, 370, 374; 4 Bl.Com. 74, 92; Lord Kenyon, in Doe v. Jones, 4 T.R. 300, 308; Cockburn on Nationality, 7; Dicey Conflict of Laws, p. 173-177, 741.

In Udny v. Udny, (1869) L.R. 1 H.L. Sc. 441, the point decided was one of inheritance, depending upon the question whether the domicil of the father was in England or in Scotland, he being in either alternative a British subject. Lord Chancellor Hatherley said: “The question of naturalization and of allegiance is distinct from that of domicil.” P. 452. Lord Westbury, in the passage relied on by the counsel for the United States, began by saying:

The law of England, and of almost all civilized countries, ascribes to each individual at his birth two distinct legal states or conditions: one, by virtue of which he becomes the subject of some particular country, binding him by the tie of natural allegiance, and which may be called his political status; another by virtue of which he has ascribed to him the character of a citizen of some particular country, and as such is possessed of certain municipal rights, and subject to certain obligations, which latter character is the civil status or condition of the individual, and may be quite different from his political status.

And then, while maintaining that the civil status is universally governed by the single principle of domicil, domicilium, the criterion established by international law for the purpose of determining civil status, and the basis on which

the personal rights of the party, that is to say, the law which determines his majority or minority, his marriage, succession, testacy or intestacy, [p657] must depend,

he yet distinctly recognized that a man’s political status, his country, patria, and his “nationality, that is, natural allegiance,” “may depend on different laws in different countries.” Pp. 457, 460. He evidently used the word “citizen” not as equivalent to “subject,” but rather to “inhabitant,” and had no thought of impeaching the established rule that all persons born under British dominion are natural-born subjects.

Lord Chief Justice Cockburn, in the same year, reviewing the whole matter, said:

By the common law of England, every person born within the dominions of the Crown, no matter whether of English or of foreign parents, and, in the latter case, whether the parents were settled or merely temporarily sojourning, in the country, was an English subject, save only the children of foreign ambassadors (who were excepted because their fathers carried their own nationality with them), or a child born to a foreigner during the hostile occupation of any part of the territories of England. No effect appears to have been given to descent as a source of nationality.

Cockburn on Nationality, 7.

Mr. Dicey, in his careful and thoughtful Digest of the Law of England with reference to the Conflict of Laws, published in 1896, states the following propositions, his principal rules being printed below in italics:

“British subject” means any person who owes permanent allegiance to the Crown. “Permanent” allegiance is used to distinguish the allegiance of a British subject from the allegiance of an alien who, because he is within the British dominions, owes “temporary” allegiance to the Crown. “Natural-born British subject” means a British subject who has become a British subject at the moment of his birth.” “Subject to the exceptions hereinafter mentioned, any person who (whatever the nationality of his parents) is born within the British dominions is a natural-born British subject. This rule contains the leading principle of English law on the subject of British nationality.

The exceptions afterwards mentioned by Mr. Dicey are only these two:

1. Any person who (his father being an alien enemy) is born in a part of the British dominions, which at the time of such [p658] person’s birth is in hostile occupation, is an alien.

2. Any person whose father (being an alien) is at the time of such person’s birth an ambassador or other diplomatic agent accredited to the Crown by the Sovereign of a foreign State is (though born within the British dominions) an alien.

And he adds:

The exceptional and unimportant instances in which birth within the British dominions does not of itself confer British nationality are due to the fact that, though at common law nationality or allegiance in substance depended on the place of a person’s birth, it in theory, at least, depended not upon the locality of a man’s birth, but upon his being born within the jurisdiction and allegiance of the King of England, and it might occasionally happen that a person was born within the dominions without being born within the allegiance, or, in other words, under the protection and control of, the Crown.

Dicey Conflict of Laws, pp. 173-177, 741.

It thus clearly appears that, by the law of England for the last three centuries, beginning before the settlement of this country and continuing to the present day, aliens, while residing in the dominions possessed by the Crown of England, were within the allegiance, the obedience, the faith or loyalty, the protection, the power, the jurisdiction of the English Sovereign, and therefore every child born in England of alien parents was a natural-born subject unless the child of an ambassador or other diplomatic agent of a foreign State or of an alien enemy in hostile occupation of the place where the child was born.

III. The same rule was in force in all the English Colonies upon this continent down to the time of the Declaration of Independence, and in the United States afterwards, and continued to prevail under the Constitution as originally established.

In the early case of The Charming Betsy, (1804) it appears to have been assumed by this court that all persons born in the United States were citizens of the United States, Chief Justice Marshall saying:

Whether a person born within the United States, or becoming a citizen according to the established laws of the country, can divest himself absolutely of [p659] that character otherwise than in such manner as may be prescribed by law is a question which it is not necessary at present to decide.

2 Cranch 64, 119.

In Inglis v. Sailors’ Snug Harbor (1833), 3 Pet. 99, in which the plaintiff was born in the city of New York about the time of the Declaration of Independence, the justices of this court (while differing in opinion upon other points) all agreed that the law of England as to citizenship by birth was the law of the English Colonies in America. Mr. Justice Thompson, speaking for the majority of the court, said:

It is universally admitted, both in the English courts and in those of our own country, that all persons born within the Colonies of North America, whilst subject to the Crown of Great Britain, are natural-born British subjects.

3 Pet. 120. Mr. Justice Johnson said: “He was entitled to inherit as a citizen born of the State of New York.” 3 Pet. 136. Mr. Justice Story stated the reasons upon this point more at large, referring to Calvin’s Case, Blackstone’s Commentaries, and Doe v. Jones, above cited, and saying:

Allegiance is nothing more than the tie or duty of obedience of a subject to the sovereign under whose protection he is, and allegiance by birth is that which arises from being born within the dominions and under the protection of a particular sovereign. Two things usually concur to create citizenship: first, birth locally within the dominions of the sovereign, and secondly, birth within the protection and obedience, or, in other words, within the allegiance of the sovereign. That is, the party must be born within a place where the sovereign is at the time in full possession and exercise of his power, and the party must also, at his birth, derive protection from, and consequently owe obedience or allegiance to, the sovereign, as such, de facto. There are some exceptions which are founded upon peculiar reasons, and which, indeed, illustrate and confirm the general doctrine. Thus, a person who is born on the ocean is a subject of the prince to whom his parents then owe allegiance; for he is still deemed under the protection of his sovereign, and born in a place where he has dominion in common with all other sovereigns. So the children of an ambassador are held to be [p660] subjects of the prince whom he represents, although born under the actual protection and in the dominions of a foreign prince.

3 Pet. 155. “The children of enemies, born in a place within the dominions of another sovereign, then occupied by them by conquest, are still aliens.” 3 Pet. 156.

Nothing is better settled at the common law than the doctrine that the children, even of aliens, born in a country while the parents are resident there under the protection of the government and owing a temporary allegiance thereto, are subjects by birth.

3 Pet. 164.

In Shanks v. Dupont, 3 Pet. 242, decided (as appears by the records of this court) on the same day as the last case, it was held that a woman born in South Carolina before the Declaration of Independence, married to an English officer in Charleston during its occupation by the British forces in the Revolutionary War, and accompanying her husband on his return to England, and there remaining until her death, was a British subject within the meaning of the Treaty of Peace of 1783, so that her title to land in South Carolina, by descent cast before that treaty, was protected thereby. It was of such a case that Mr. Justice Story, delivering the opinion of the court, said:

The incapacities of femes covert, provided by the common law, apply to their civil rights, and are for their protection and interest. But they do not reach their political rights, nor prevent their acquiring or losing a national character. Those political rights do not stand upon the mere doctrines of municipal law, applicable to ordinary transactions, but stand upon the more general principles of the law of nations.

3 Pet. 248. This last sentence was relied on by the counsel for the United States as showing that the question whether a person is a citizen of a particular country is to be determined not by the law of that country, but by the principles of international law. But Mr. Justice Story certainly did not mean to suggest that, independently of treaty, there was any principle of international law which could defeat the operation of the established rule of citizenship by birth within the United States; for he referred (p. 245) to the contemporaneous opinions in Inglis v. Sailors’ Snug Harbor, [p661] above cited, in which this rule had been distinctly recognized, and in which he had said (p. 162) that “each government had a right to decide for itself who should be admitted or deemed citizens,” and, in his Treatise on the Conflict of Laws, published in 1834, he said that, in respect to residence in different countries or sovereignties, “there are certain principles which have been generally recognized by tribunals administering public law” [adding, in later editions “or the law of nations”] “as of unquestionable authority,” and stated, as the first of those principles, “Persons who are born in a country are generally deemed citizens and subjects of that country.” Story, Conflict of Laws, § 48.

The English statute of 11 & 12 Will. III (1700). c. 6, entitled

An act to enable His Majesty’s natural-born subjects to inherit the estate of their ancestors, either lineal or collateral, notwithstanding their father or mother were aliens,

enacted that “all and every person or persons, being the King’s natural-born subject or subjects, within any of the King’s realms or dominions,” might and should thereafter lawfully inherit and make their titles by descent to any lands

from any of their ancestors, lineal or collateral, although the father and mother, or father or mother, or other ancestor, of such person or persons, by, from, through or under whom

title should be made or derived, had been or should be “born out of the King’s allegiance, and out of is Majesty’s realms and dominions,” as fully and effectually, as if such parents or ancestors “had been naturalized or natural-born subject or subjects within the King’s dominions.” 7 Statutes of the Realm, 90. It may be observed that, throughout that statute, persons born within the realm, although children of alien parents, were called “natural-born subjects.” As that statute included persons born “within any of the King’s realms or dominions,” it, of course, extended to the Colonies, and, not having been repealed in Maryland, was in force there. In McCreery v. Somerville, (1824) 9 Wheat. 354, which concerned the title to land in the State of Maryland, it was assumed that children born in that State of an alien who was still living, and who had not been naturalized, were “native-born citizens of the [p662] United States,” and, without such assumption, the case would not have presented the question decided by the court, which, as stated by Mr. Justice Story in delivering the opinion, was

whether the statute applies to the case of a living alien ancestor, so as to create a title by heirship where none would exist by the common law if the ancestor were a natural-born subject.

9 Wheat. 356.

Again, in Levy v. McCartee (1832), 6 Pet. 102, 112, 113, 115, which concerned a descent cast since the American Revolution, in the State of New York, where the statute of 11 & 12 Will. III had been repealed, this court, speaking by Mr. Justice Story, held that the case must rest for its decision exclusively upon the principles of the common law, and treated it as unquestionable that, by that law, a child born in England of alien parents was a natural-born subject, quoting the statement of Lord Coke in Co.Lit. 8a, that,

if an alien cometh into England and hath issue two sons, these two sons are indigenae, subjects born, because they are born within the realm,

and saying that such a child “was a native-born subject, according to the principles of the common law stated by this court in McCreery v. Somervlle, 9 Wheat. 354.”

In Dred Scott v. Sandford, (1857) 19 How. 393, Mr. Justice Curtis said:

The first section of the second article of the Constitution uses the language, “a natural-born citizen.” It thus assumes that citizenship may be acquired by birth. Undoubtedly, this language of the Constitution was used in reference to that principle of public law, well understood in this country at the time of the adoption of the Constitution, which referred citizenship to the place of birth.

19 How. 576. And, to this extent, no different opinion was expressed or intimated by any of the other judges.

In United States v. Rhodes (1866), Mr. Justice Swayne, sitting in the Circuit Court, said:

All persons born in the allegiance of the King are natural-born subjects, and all persons born in the allegiance of the United States are natural-born citizens. Birth and allegiance go together. Such is the rule of the common law, and it is the common law of this country, as well as of England. . . . We find no warrant for the opinion [p663] that this great principle of the common law has ever been changed in the United States. It has always obtained here with the same vigor, and subject only to the same exceptions, since as before the Revolution.

1 Abbott (U.S.) 28, 40, 41.

The Supreme Judicial Court of Massachusetts, speaking by Mr. Justice (afterwards Chief Justice) Sewall, early held that the determination of the question whether a man was a citizen or an alien was “to be governed altogether by the principles of the common law,” and that it was established, with few exceptions,

that a man born within the jurisdiction of the common law is a citizen of the country wherein he is born. By this circumstance of his birth, he is subjected to the duty of allegiance which is claimed and enforced by the sovereign of his native land, and becomes reciprocally entitled to the protection of that sovereign, and to the other rights and advantages which are included in the term “citizenship.”

Garder v. Ward (1805), 2 Mass. 244, note. And again:

The doctrine of the common law is that every man born within its jurisdiction is a subject of the sovereign of the country where he is born, and allegiance is not personal to the sovereign in the extent that has been contended for; it is due to him in his political capacity of sovereign of the territory where the person owing the allegiance as born.

Kilham v. Ward (1806), 2 Mass. 236, 265. It may here be observed that, in a recent English case, Lord Coleridge expressed the opinion of the Queen’s Bench Division that the statutes of 4 Geo. II, (1731) c. 1, and 13 Geo. III (1773), c. 21, (hereinafter referred to) “clearly recognize that to the King in his politic, and not in his personal, capacity is the allegiance of his subjects due.” Isaacson v. Durant, 17 Q.B.D. 54, 65.

The Supreme Court of North Carolina, speaking by Mr; Justice Gaston, said:

Before our Revolution, all free persons born within the dominions of the King of Great Britain, whatever their color or complexion, were native-born British subjects; those born out of his allegiance were aliens. . . . Upon the Revolution, no other change took place in the law of North Carolina than was consequent upon the transition from a colony dependent on an European King to a free and sovereign [p664] State; . . . British subjects in North Carolina became North Carolina freemen; . . . and all free persons born within the State are born citizens of the State. . . . The term “citizen,” as understood in our law, is precisely analogous to the term “subject” in the common law, and the change of phrase has entirely resulted from the change of government. The sovereignty has been transferred from one man to the collective body of the people, and he who before as a “subject of the king” is now “a citizen of the State.”

State v. Manuel (1838), 4 Dev. & Bat. 20, 24-26.

That all children born within the dominion of the United States of foreign parents holding no diplomatic office became citizens at the time of their birth does not appear to have been contested or doubted until more than fifty years after the adoption of the Constitution, when the matter was elaborately argued in the Court of Chancery of New York and decided upon full consideration by Vice Chancellor Sandford in favor of their citizenship. Lynch v. Clark, (1844) 1 Sandf.Ch. 583.

The same doctrine was repeatedly affirmed in the executive departments, as, for instance, by Mr. Marcy, Secretary of State, in 1854, 2 Whart.Int.Dig. (2d ed.) p. 394; by Attorney General Black in 1859, 9 Opinions, 373, and by Attorney General Bates in 1862, 10 Opinions, 328, 382, 394, 396.

Chancellor Kent, in his Commentaries, speaking of the “general division of the inhabitants of every country under the comprehensive title of aliens and natives,” says:

Natives are all persons born within the jurisdiction and allegiance of the United States. This is the rule of the common law, without any regard or reference to the political condition or allegiance of their parents, with the exception of the children of ambassadors, who are in theory born within the allegiance of the foreign power they represent. . . . To create allegiance by birth, the party must be born not only within the territory, but within the ligeance of the government. If a portion of the country be taken and held by conquest in war, the conqueror acquires the rights of the conquered as to its dominion and government, and children born in the armies of a State, while [p665] abroad and occupying a foreign country, are deemed to be born in the allegiance of the sovereign to whom the army belongs. It is equally the doctrine of the English common law that, during such hostile occupation of a territory, and the parents be adhering to the enemy as subjects de facto, their children, born under such a temporary dominion, are not born under the ligeance of the conquered.

2 Kent Com. (6th ed.) 39, 42. And he elsewhere says:

And if, at common law, all human beings born within the ligeance of the King, and under the King’s obedience, were natural-born subjects, and not aliens, I do not perceive why this doctrine does not apply to these United States, in all cases in which there is no express constitutional or statute declaration to the contrary. . . . Subject and citizen are, in a degree, convertible terms as applied to natives, and though the term citizen seems to be appropriate to republican freemen, yet we are, equally with the inhabitants of all other countries, subjects, for we are equally bound by allegiance and subjection to the government and law of the land.

2 Kent Com. 258, note.

Mr. Binney, in the second edition of a paper on the Alienigenae of the United States, printed in pamphlet at Philadelphia, with a preface bearing his signature and the date of December 1, 1853, said:

The common law principle of allegiance was the law of all the States at the time of the Revolution and at the adoption of the Constitution, and, by that principle, the citizens o the United States are, with the exceptions before mentioned,

(namely, foreign-born children of citizens, under statutes to be presently referred to)

such only as are either born or made so, born within the limits and under the jurisdiction of the United States or naturalized by the authority of law, either in one of the States before the Constitution or, since that time, by virtue of an act of the Congress of the United States.

P. 20.

The right of citizenship never descends in the legal sense, either by the common law or under the common naturalization acts. It is incident to birth in the country, or it is given personally by statute. The child of an alien, if born in the country, is as much a citizen as the natural born child of a citizen, and by operation of the same principle. [p666]

P. 22, note. This paper, without Mr. Binney’s name and with the note in a less complete form and not containing the passage last cited, was published (perhaps from the first edition) in the American Law Register for February, 1854. 2 Amer.Law Reg.193, 203, 204.

IV. It was contended by one of the learned counsel for the United States that the rule of the Roman law, by which the citizenship of the child followed that of the parent, was the true rule of international law, as now recognized in most civilized countries, and had superseded the rule of the common law, depending on birth within the realm, originally founded on feudal considerations.

But at the time of the adoption of the Constitution of the United States in 1789, and long before, it would seem to have been the rule in Europe generally, as it certainly was in France, that, as said by Pothier, “citizens, true and native-born citizens, are those who are born within the extent of the dominion of France,” and

mere birth within the realm gives the rights of a native-born citizen, independently of the origin of the father or mother, and of their domicil;

and children born in a foreign country, of a French father who had not established his domicil there nor given up the intention of returning, were also deemed Frenchmen, as Laurent says, by “a favor, a sort of fiction,” and Calvo, “by a sort of fiction of exterritoriality, considered as born in France, and therefore invested with French nationality.” Pothier Trait des Personnes, pt. 1, tit. 2, sect. 1, nos. 43, 45; Walsh-Serrant v. Walsh-Serrant, (1802) 3 Journal du Palais, 384; S.C., S. Merlin, Jurisprudence, (5th ed.) Domicile, § 13; Prefet du Nord v. Lebeau, (1862) Journal du Palais, 1863, 312 and note; 1 Laurent Droit Civil, no. 321; 2 Calvo Droit International, (5th ed.) § 542; Cockburn on Nationality, 13, 14; Hall’s International Law, (4th ed.) § 68. The general principle of citizenship by birth within French territory prevailed until after the French Revolution, and was affirmed in successive constitutions from the one adopted by the Constituent Assembly in 1791 to that of the French Republic in 1799. Constitutions et Chartes, (ed. 1830) pp. 100, 136, 148, 186. [p667] The Code Napoleon of 1807 changed the law of France and adopted, instead of the rule of country of birth, jus soli, the rule of descent or blood, jus sanguinis, as the leading principle; but an eminent commentator has observed that the framers of that code

appear not to have wholly freed themselves from the ancient rule of France, or rather, indeed, ancient rule of Europe — de la vielle regle francaise, ou plutot meme de la vielle regle europienne — according to which nationality had always been, in former times, determined by the place of birth.

1 Demolombe Cours de Code Napoleon (4th ed.) no. 146.

The later modifications of the rule in Europe rest upon the constitutions, laws or ordinances of the various countries, and have no important bearing upon the interpretation and effect o the Constitution of the United States. The English Naturalization Act of 33 Vict. (1870) c. 14, and the Commissioners’ Report of 1869, out of which it grew, both bear date since the adoption of the Fourteenth Amendment of the Constitution; and, as observed by Mr. Dicey, that act has not affected the principle by which any person who, whatever the nationality of his parents, is born within the British dominions, acquires British nationality at birth and is a natural-born British subject. Dicey, Conflict of Laws 41. At the time of the passage of that act, although the tendency on the continent of Europe was to make parentage, rather than birthplace, the criterion of nationality, and citizenship was denied to the native-born children of foreign parents in Germany, Switzerland, Sweden and Norway, yet it appears still to have been conferred upon such children in Holland, Denmark and Portugal, and, when claimed under certain specified conditions, in France, Belgium, Spain, Italy, Greece and Russia. Cockburn on Nationality, 14-21.

There is, therefore, little ground for the theory that, at the time of the adoption of the Fourteenth Amendment of the Constitution of the United States, there as any settled and definite rule of international law, generally recognized by civilized nations, inconsistent with the ancient rule of citizenship by birth within the dominion. [p668]

Nor can it be doubted that it is the inherent right of every independent nation to determine for itself, and according to its own constitution and laws, what classes of persons shall be entitled to its citizenship.

Both in England and in the United States, indeed, statutes have been passed at various times enacting that certain issue born abroad of English subjects or of American citizens, respectively, should inherit, to some extent at least, the rights of their parents. But those statutes applied only to cases coming within their purport, and they have never been considered in either country as affecting the citizenship of persons born within its dominion.

The earliest statute was passed in the reign of Edward III. In the Rolls of Parliament of 17 Edw. III (1343), it is stated that,

before these times, there have been great doubt and difficulty among the Lords of this realm, and the Commons, as well men of the law as others, whether children who are born in parts beyond sea ought to bear inheritance after the death of their ancestors in England, because no certain law has been thereon ordained;

and by the King, Lords and Commons, it was unanimously agreed that

there was no manner of doubt that the children of our Lord the King, whether they were born on this side the sea or beyond the sea, should bear the inheritance of their ancestors; . . . and in regard to other children, it was agreed in this Parliament that they also should inherit wherever they might be born in the service of the King;

but, because the Parliament was about to depart, and the business demanded great advisement and good deliberation how it should be best and most surely done, the making of a statute was put off to the next Parliament. 2 Rot.Parl. 139. By reason, apparently, of the prevalence of the plague in England, no act upon the subject was passed until 5 Edw. III, (1350), when Parliament passed an act entitled “A statute for those who are born in parts beyond sea,” by which — after reciting that

some people be in doubt if the children born in the parts beyond the sea, out of the ligeance of England, should be able to demand any inheritance within the same ligeance, or not, whereof a petition was put [p669] in the Parliament

of 17 Edw. III, “and as not at the same time wholly assented” — it was (1) agreed and affirmed

that the law of the Crown of England is, and always hath been such, that the children of the Kings of England, in whatsoever parts they be born, in England or elsewhere, be able and ought to bear the inheritance after the death of their ancestors;

(2) also agreed that certain persons named,

which were born beyond the sea, out of the ligeance of England, shall be from henceforth able to have and enjoy their inheritance after the death of their ancestors, in all parts within the ligeance of England, as well as those that should be born within the same ligeance:

(3) and further agreed

that all children inheritors, which from henceforth shall be born without the ligeance of the King, whose fathers and mothers at the time of their birth be and shall be at the faith and ligeance of the King of England, shall have and enjoy the same benefits and advantages to have and bear the inheritance within the same ligeance as the other inheritors aforesaid, in time to come; so always, that the mothers of such children do pass the sea by the licence and wills of their husbands.

2 Rot. Parl. 231; 1 Statutes of the Realm, 310.

It has sometimes been suggested that this general provision of the statute of 25 Edw. III was declaratory of the common law. See Bacon, arguendo, in Calvin’ Case, 2 Howell’s State Trials, 585; Westlake and Pollock, arguendo, in De Geer v. Stone, 22 Ch.D. 243, 247; 2 Kent Com. 50, 53; Lynch v. Clarke,1 Sandf.Ch. 583, 659, 660; Ludlam v. Ludlam, 26 N.Y. 356. But all suggestions to that effect seem to have been derived, immediately or ultimately, from one or the other of these two sources: the one, the Year Book of 1 Ric. III, (1483) fol. 4, pl. 7, reporting a saying of Hussey, C.J.,

that he who is born beyond sea, and his father and mother are English, their issue inherit by the common law, but the statute makes clear, &c.,

— which, at best, was but obiter dictum, for the Chief Justice appears to have finally rested his opinion on the statute. The other, a note added to the edition of 1688 of Dyer’s Reports, 184a, stating that, at Trinity Term, 7 Edw. III, Rot. 2 B.R., it was adjudged that children of subjects born [p670] beyond the sea in the service of the King were inheritable — which has been shown, by a search of the roll in the King’s Bench so referred to, to be a mistake, inasmuch as the child there in question did not appear to have been born beyond sea, but only to be living abroad. Westlake’s Private International Law (3d ed.) 324.

The statute of 5 Edw. III recites the existence of doubts as to the right of foreign-born children to inherit in England; and, while it is declaratory of the rights of children of the King, and is retrospective as to the persons specifically named, yet, as to all others, it is, in terms, merely prospective, applying to those only “who shall be born henceforth.” Mr. Binney, in his paper above cited, after a critical examination of the statute and of the early English cases, concluded:

There is nothing in the statute which would justify the conclusion that it is declaratory of the common law in any but a single particular, namely in regard to the children of the King; nor has it at any time been judicially held to be so. . . . The notion that there is any common law principle to naturalize the children born in foreign countries, of native-born American father and mother, father or mother, must be discarded. There is not, and never was, any such common law principle.

Binney on Alienigenae, 14, 20; 2 Amer.Law Reg.199, 203. And the great weight of the English authorities, before and since he wrote, appears to support his conclusion. Calvin’s Case, 7 Rep. 17a, 18a; Co.Lit. 8a, and Hargrave’s note 36; 1 Bl.Com. 33; Barrington on Statutes, (5th ed.) 268; Lord Kenyon, in Doe v. Jones, 4 T.R. 300, 308; I: ord Chancellor Cranworth, in Shedden v. Patrick, 1 Macq. 535, 611; Cockburn on Nationality, 7, 9; De Greer v. Stone, 2 Ch.D. 243, 252; Dicey Conflict of Laws, 17, 741. “The acquisition,” says Mr. Dicey, (p. 741) “of nationality by descent is foreign to the principles of the common law, and is based wholly upon statutory enactments.”

It has been pertinently observed that, if the statute of Edward III had only been declaratory of the common law, the subsequent legislation on the subject would have been wholly unnecessary. Cockburn on Nationality 9. By the [p671] statute of 29 Car. II, (1677) c. 6, § 1, entitled “An act for the naturalization of children of His Majesty’s subjects born in foreign countries during the late troubles,” all persons who, at any time between June 14, 1641, and March 24, 1660, “were born out of His Majesty’s dominions, and whose fathers or mothers were natural-born subjects of this realm” were declared to be natural-born subjects. By the statute of 7 Anne, (1708) c. 5, § 3, “the children of all natural-born subjects, born out of the ligeance of Her Majesty, her heirs and successors” — explained by the statute of 4 Geo. II, (1731) c. 21, to mean all children born out of the ligeance of the Crown of England

whose fathers were or shall be natural-born subjects of the Crown of England, or of Great Britain, at the time of the birth of such children respectively . . . . shall be deemed, adjudged and taken to be natural-born subjects of this kingdom, to all intents, constructions and purposes whatsoever.

That statute was limited to foreign-born children of natural-born subjects, and was extended by the statute of 13 Geo. III, (1773) c. 21, to foreign-born grandchildren of natural-born subjects, but not to the issue of such grandchildren; or, as put by Mr. Dicey, “British nationality does not pass by descent or inheritance beyond the second generation.” See DeGeer v. Stone, above cited; Dicey, Conflict of Laws 742.

Moreover, under those statutes, as is stated in the Report in 1869 of the Commissioners for inquiring into the Laws of Naturalization and Allegiance,

no attempt has ever been made on the part of the British Government, (unless in Eastern countries where special jurisdiction is conceded by treaty) to enforce claims upon, or to assert rights in respect of, persons born abroad, as against the country of their birth whilst they were resident therein, and when by its law they were invested with its nationality.

In the appendix to their report are collected many such cases in which the British Government declined to interpose, the reasons being most clearly brought out in a dispatch of March 13, 1858, from Lord Malmesbury, the Foreign Secretary, to the British Ambassador at Paris, saying:

It is competent to any country to confer by general or special legislation the privileges of nationality upon those [p672] who are born out of its on territory; but it cannot confer such privileges upon such persons as against the country of their birth, when they voluntarily return to and reside therein. Those born in the territory of a nation are (as a general principle) liable when actually therein to the obligations incident to their status by birth. Great Britain considers and treats such persons as natural-born subjects, and cannot therefore deny the right of other nations to do the same. But Great Britain cannot permit the nationality of the children of foreign parents born within her territory to be questioned.

Naturalization Commission Report, pp. viii, 67; U.S. Foreign Relations, 1873-1874, pp. 1237, 1837. See also Drummond’s Case (1834), 2 Knapp 295.

By the Constitution of the United States, Congress was empowered “to establish an uniform rule of naturalization.” In the exercise of this power, Congress, by successive acts, beginning with the act entitled “An act to establish an uniform rule of naturalization,” passed at the second session of the First Congress under the Constitution, has made provision for the admission to citizenship of three principal classes of persons: First. Aliens, having resided for a certain time “within the limits and under the jurisdiction of the United States,” and naturalized individually by proceedings in a court of record. Second. Children of persons so naturalized, “dwelling within the United States, and being under the age of twenty-one years at the time of such naturalization.” Third. Foreign-born children of American citizens, coming within the definitions prescribed by Congress. Acts of March 26, 1790, c. 3; January 29, 1795, c. 20; June 18, 1798, c. 54; 1 Stat. 103, 414, 566; April 14, 1802, c. 28; March 26, 1804, c. 47; 2 Stat. 153, 292; February 10, 1854, c. 71; 10 Stat. 604; Rev.Stat. §§ 2165, 2172, 1993.

In the act of 1790, the provision as to foreign-born children of American citizens was as follows:

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 [p673] resident in the United States.

1 Stat. 104. In 1795, this was reenacted in the same words, except in substituting for the words “beyond sea, or out of the limits of the United States” the words “out of the limits and jurisdiction of the United States.” 1 Stat. 415.

In 1802, all former acts were repealed, and the provisions concerning children of citizens were reenacted in this form:

The children of persons duly naturalized under any of the laws of the United States, or who, previous to the passing of any law on that subject by the Government of the United States, may have become citizens of any one of the said States under the laws thereof, being under the age of twenty-one years at the time of their parents’ being so naturalized or admitted to the rights of citizenship, shall, if dwelling in the United States, be considered as citizens of the United States, and the children of persons who now are, or have been citizens of the United States shall, though born out of the limits and jurisdiction of the United States, be considered as citizens of the United States: Provided, that the right of citizenship shall not descend to persons whose fathers have never resided within the United States.

Act of April 14, 1802, c. 28, § 4; 2 Stat. 155.

The provision of that act concerning “the children of persons duly naturalized under any of the laws of the United States,” not being restricted to the children of persons already naturalized, might well be held to include children of persons thereafter to be naturalized. 2 Kent Com. 51, 52; West v. West, 8 Paige, 433; United States v. Kellar, 11 Bissell, 314; Boyd v. Thayer, 143 U.S. 135-177.

But the provision concerning foreign-born children, being expressly limited to the children of persons who then were or had been citizens, clearly did not include foreign-born children of any person who became a citizen since its enactment. 2 Kent.Com. 52, 53; Binney on Alienigenae 20, 25; 2 Amer.Law Reg. 203, 205. Mr. Binney’s paper, as he states in his preface, was printed by him in the hope that Congress might supply this defect in our law.

In accordance with his suggestions, it was enacted by the [p674] statute of February 10, 1855, c. 71, that

persons heretofore born, or hereafter to be born, out of the limits and jurisdiction of the United States, whose fathers were or shall be at the time of their birth citizens of the United States, shall be deemed and considered and are hereby declared to be citizens of the United States: Provided, however, that the rights of citizenship shall not descend to persons whose fathers never resided in the United States.

10 Stat. 604; Rev.Stat. § 1993.

It thus clearly appears that, during the half century intervening between 1802 and 1855, there was no legislation whatever for the citizenship of children born abroad, during that period, of American parents who had not become citizens of the United States before the act of 1802, and that the act of 1855, like every other act of Congress upon the subject, has, by express proviso, restricted the right of citizenship, thereby conferred upon foreign-born children of American citizens, to those children themselves, unless they became residents of the United States. Here is nothing to countenance the theory that a general rule of citizenship by blood or descent has displaced in this country the fundamental rule of citizenship by birth within its sovereignty.

So far as we are informed, there is no authority, legislative, executive or judicial, in England or America, which maintains or intimates that the statutes (whether considered as declaratory or as merely prospective) conferring citizenship on foreign-born children of citizens have superseded or restricted, in any respect, the established rule of citizenship by birth within the dominion. Even those authorities in this country, which have gone the farthest towards holding such statutes to be but declaratory of the common law have distinctly recognized and emphatically asserted the citizenship of native-born children of foreign parents. 2 Kent Com. 39, 50, 53, 258 note; Lynch v. Clarke, 1 Sandf.Ch. 583, 659; Ludlam v. Ludlam, 26 N.Y. 356, 371.

Passing by questions once earnestly controverted, but finally put at rest by the Fourteenth Amendment of the Constitution, it is beyond doubt that, before the enactment of the Civil Rights Act of 1866 or the adoption of the Constitutional [p675] Amendment, all white persons, at least, born within the sovereignty of the United States, whether children of citizens or of foreigners, excepting only children of ambassadors or public ministers of a foreign government, were native-born citizens of the United States.


136 posted on 07/05/2011 1:55:03 PM PDT by Mr Rogers (Poor history is better than good fiction, and anything with lots of horses is better still)
[ Post Reply | Private Reply | To 132 | View Replies]

To: Kleon

Actualy, on consideration, I agree with you. I’m revising the essay accordingly.


137 posted on 07/05/2011 1:55:15 PM PDT by sourcery (If true=false, then there would be no constraints on what is possible. Hence, the world exists.)
[ Post Reply | Private Reply | To 131 | View Replies]

To: Ha Ha Thats Very Logical

Legal term definitions use the closed world assumption.


138 posted on 07/05/2011 1:59:26 PM PDT by sourcery (If true=false, then there would be no constraints on what is possible. Hence, the world exists.)
[ Post Reply | Private Reply | To 135 | View Replies]

To: Mr Rogers
LOL at your last ridiculous post. Copying and pasting this part of the decision shows that it is NOT defining natural born citizen:

In Minor v. Happersett, Chief Justice Waite, when construing, in behalf of the court, the very provision of the Fourteenth Amendment now in question, said: “The Constitution does not, in words, say who shall be natural-born citizens. Resort must be had elsewhere to ascertain that.”

This specifically says the 14th amendment does NOT define what it means to be a natural born citizen. This DIRECTLY negates the question that was being addressed: whether the child of foreign nationals is a citizen via the 14th amendment. From this point forward, NBC is NOT mentioned again for about 30 paragraphs, where it says:

All persons born in the allegiance of the King are natural-born subjects, and all persons born in the allegiance of the United States are natural-born citizens.

This quote is in reference to people who were born IN THE UNITED STATES. It shows that you could be born in the United States and NOT automatically be a natural born citizen because one could be born in the allegiance of another country. Those persons in this example were natural born subjects, NOT natural born citizens.

There's a reason why Gray's decision did not stop where you stopped copying and pasting. His argument was not sufficient to declare Wong Kim Ark to be a citizen and Gray knew it. He proceeded to build an argument on a common-law definition of citizenship that was NOT the same definition used by the SCOTUS in defining NBC. He had to defend that definition AND he had to justify that non-citizen parents would meet the subject clause of the 14th amendment, which is why he went on to explain how they had permanent residence and domicil. Nowhere in that decision is Wong Kim Ark declared to be a natural born citizen. Nowhere.

139 posted on 07/05/2011 2:39:14 PM PDT by edge919
[ Post Reply | Private Reply | To 136 | View Replies]

To: sourcery
Who is a "natural born Citizen?"

Look to the founding document (which we just celebrated) for a clue.

Based on natural law.

You, of course, already know that though ;)

140 posted on 07/05/2011 2:48:22 PM PDT by rxsid (HOW CAN A NATURAL BORN CITIZEN'S STATUS BE "GOVERNED" BY GREAT BRITAIN? - Leo Donofrio (2009))
[ Post Reply | Private Reply | To 1 | View Replies]


Navigation: use the links below to view more comments.
first previous 1-20 ... 81-100101-120121-140141-157 next last

Disclaimer: Opinions posted on Free Republic are those of the individual posters and do not necessarily represent the opinion of Free Republic or its management. All materials posted herein are protected by copyright law and the exemption for fair use of copyrighted works.

Free Republic
Browse · Search
News/Activism
Topics · Post Article

FreeRepublic, LLC, PO BOX 9771, FRESNO, CA 93794
FreeRepublic.com is powered by software copyright 2000-2008 John Robinson