Replies

Excellent comments on THE VENUS.

If I might elaborate a bit more:

The ruling in The Venus was that a US citizen living in Britain, who shipped goods before hearing that war had broken out, had no right to keep his property. It could be confiscated by an American privateer and not given back.

It was agreed that certain parties in the case were naturalized US citizens living in Britain.

No rule of natural born citizenship was decided or even considered in the case.

No rule of Presidential eligibility was decided or even considered in the case.

No determination even of who WAS and WAS NOT a US citizen was decided or even considered in the case:

The great question involved in this and many other of the prize cases which have been argued is whether the property of these claimants who were settled in Great Britain and engaged in the commerce of that country, shipped before they had a knowledge of the war but which was captured after the declaration of war by an American cruiser ought to be condemned as lawful prize. It is contended by the captors that as these claimants had gained a domicile in Great Britain, and continued to enjoy it up to the time when war was declared, and when these captures were made, they must be considered as British subjects, in reference to this property, and consequently that it may legally be seized as prize of war in like manner as if it had belonged to real British subjects. But if not so, it is then insisted that these claimants having, after their naturalization in the United States, returned to Great Britain, the country of their birth, and there resettled themselves, they became reintegrated British subjects and ought to be considered by this Court in the same light as if they had never emigrated. On the other side it is argued that American citizens settled in the country of the enemy, as these persons were, at the time war was declared were entitled to a reasonable time to elect, after they knew of the war, to remain there or to return to the United States, and that until such election was bona fide made, the courts of this country are bound to consider them as American citizens and their property shipped before they had an opportunity to make this election as being protected against American capture.

There being no dispute as to the facts upon which the domicile of these claimants is asserted, the questions of law alone remain to be considered.

The majority made the point that Vattel, as a writer on the law of nations, said that establishing a DOMICILE in another country changed a person's status. Such a person is

"a member of the new society, at least as a permanent inhabitant, and is a kind of citizen of an inferior order from the native citizens, but is nevertheless united and subject to the society without participating in all its advantages."

They also said that this subjects the property of such a person to capture by his home country, because for as long as he is resident of the other country, he assumes the character of a subject of that country. In fact, Vattel goes so far as to describe him as "a kind of citizen of an inferior order from the native citizens."

This comment, incidentally, may explain why Marshall included Vattel's comments about the "natives, or indigenes." The case mentions the term "native citizens," so how Vattel defines that is relevant to provide context.

When the US citizen moves back home, he is accepted here as a US citizen again. But if he had property confiscated before he pulled up his foreign domicile and moved, tough luck. As the majority says:

It is contended that a native or naturalized subject of one country who is surprised in the country where he was domiciled by a declaration of war ought to have time to make his election to continue there or to remove to the country to which he owes a permanent allegiance, and that until such election is made, his property ought to be protected from capture by the cruisers of the latter. This doctrine is believed to be as unfounded in reason and justice as it clearly is in law.

Chief Justice Marshall dissented, saying that he agreed the property of a US citizen who continued to live in a country we were at war with was fair game. But he maintained that the US citizen should be allowed to keep his property if he showed that he was promptly returning to our country rather than staying in the country we were at war with:

I entirely concur in so much of the opinion delivered in this case as attaches a hostile character to the property of an American citizen continuing, after the declaration of war, to reside and trade in the country of the enemy, and I subscribe implicitly to the reasoning urged in its support. But from so much of that opinion as subjects to confiscation the property of a citizen shipped before a knowledge of the war, and which disallows the defense founded on an intention to change his domicile and to return to the United States, manifested in a sufficient manner, and within a reasonable time after knowledge of the war, although it be subsequent to the capture, I feel myself compelled to dissent.

Marshall's quote from Vattel has absolutely nothing at all to do with establishing some sort of definition of "citizen." STILL LESS any point whatsoever about establishing a definition of "NATURAL BORN CITIZEN." It simply has nothing to do with that.

Chief Justice Marshall is simply saying that there are citizens, there are inhabitants (what we would today call non-resident aliens, or people in the country on a work, study or tourist visa), and permanent inhabitants. The last are people who have gotten their "green card" and are there to stay.

But in Marshall's day there were no "green cards." The question was simply whether the US citizen had established permanent residence in Britain, and if so, what that permanent residence (or DOMICILE) meant in the event of war breaking out between the US and the UK.

So it's a discussion of:

"There are citizens, inhabitants, and permanent inhabitants. The permanent inhabitants have established a domicile. Here's some discussion on what that means."

And here's that discussion:

The whole system of decisions applicable to this subject rests on the law of nations as its base. It is therefore of some importance to inquire how far the writers on that law consider the subjects of one power residing within the territory of another, as retaining their original character or partaking of the character of the nation in which they reside.

Vattel, who, though not very full to this point, is more explicit and more satisfactory on it than any other whose work has fallen into my hands, says "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 indigenes are those born in the country of parents who are citizens. Society not being able to subsist and to perpetuate itself but by the children of the citizens, those children naturally follow the condition of their fathers, and succeed to all their rights."

"The inhabitants, as distinguished from citizens, are strangers who are permitted to settle and stay in the country. Bound by their residence to the society, they are subject to the laws of the state while they reside there, and they are obliged to defend it because it grants them protection, though they do not participate in all the rights of citizens. They enjoy only the advantages which the laws or custom gives them. The perpetual inhabitants are those who have received the right of perpetual residence. These are a kind of citizens of an inferior order, and are united and subject to the society, without participating in all its advantages."

"The domicile is the habitation fixed in any place with an intention of always staying there. A man does not, then, establish his domicile in any place unless he makes sufficiently known his intention of fixing there, either tacitly or by an express declaration. However, this declaration is no reason why, if he afterwards changes his mind, he may not remove his domicile elsewhere. In this sense, he who stops, even for a long time, in a place for the management of his affairs has only a simple habitation there, but has no domicile."

A domicile, then, in the sense in which this term is used by Vattel, requires not only actual residence in a foreign country, but "an intention of always staying there."

Actual residence without this intention amounts to no more than "simple habitation."

Marshall continues with comments such as this one:

The stranger merely residing in a country during peace, however long his stay and whatever his employment, provided it be such as strangers may engage in cannot, on the principles of national law, be considered as incorporated into that society so as immediately on a declaration of war to become the enemy of his own. "His property," says Vattel, "is still a part of the totality of the wealth of his nation..." So yes, it has to do with how Americans living abroad are regarded when we go to war with the country they're living in, whether their property is subject to seizure, and questions of exactly what domicile, or permanent residence, means.

It is also crystal clear: The case DOES NOT have anything at all to do with what qualifications in American law make a person a United States citizen in the first place, and it CERTAINLY doesn't have the faintest thing to do with the definition of natural born citizenship or Presidential eligibility.