I adopt the words of that man whose clear intellect, through a long and laborious life, contributed much that will endure to the jurisprudence of his country—like the lamented Chancellor Kent, of New York— who declared that every person of African descent, born in this land, is a citizen of the United States, and although born in a condition of slavery under the laws if any State in whichhe might be held in service or labor, still he was a citizen of the United States under disabilities.
Whatever did Chancellor Kent actually say? Much may be found in Lynch v. Clarke, 3 Owen 236 (5 Nov 1844). As Chancellor, James Kent held the highest judicial position in the State of New York. Lewis H. Sandford was the Assistant Vice-Chancellor of the First Circuit.
At 3 Owen 250:
Our policy, in this respect, and its happy results, were forcibly vindicated in the convention of 1787, by Dr. Franklin, Mr. Madison, Gen. Hamilton and Judge Wilson. (3 Madison papers, 1273, 1299 ; I Wilson's Works, 163; 2 ibid, 446 to 450. And see the Message of President Jefferson to Congress, Dec. 8th, 1801.)With these various and conclusive illustrations of the uniform, wise and beneficial policy of the United States, for nearly two centuries past ; a policy which embraced every legitimate means for increasing the number, not merely of its inhabitants, but of its citizens; it is impossible to hold that there has been any relaxation from the common law rule of citizenship by means of birth within our territory.
6. Upon principle, therefore, I can entertain no doubt, but that by the law of the United States, every person born within the dominions and allegiance of the United States, whatever were the situation of his parents, is a natural born citizen. It is surprising that there has been no judicial decision upon this question. None was found by the counsel who argued this cause, and so far as I have been able to ascertain, it never has been expressly decided in any of the courts of the respective states, or of the United States. This circumstance itself, in regard to a point which must have occurred so often in the administration of justice, furnishes a strong inference that there has never been any doubt but that the common law rule was the law of the land. This inference is confirmed, and the position made morally certain, by such legislative, judicial and legal expositions as bear upon the question. Before referring to those, I am bound to say that the general understanding of the legal profession, and the universal impression of the public mind, so far as I have had the opportunity of knowing it, is that birth in this country does of itself constitute citizenship. Thus when at an election, the inquiry is made whether a person offering to vote is a citizen or an alien, if he answers that he is a native of this country, it is received as conclusive that he is a citizen. No one inquires farther. No one asks whether his parents were citizens or were foreigners. It is enough that he was born here, whatever were the status of his parents. I know that common consent is sometimes only a common error, and that public opinion is not any authority on a point of law. But this is a question which is more important and more deeply felt in reference to political rights, than to rights of property. The universality of the public sentiment in this instance, is a part of the historical evidence of the state and progress of the law on the subject. It indicates the strength and depth of the common law principle, and confirms the position that the adoption of the Federal Constitution wrought no change in that principle.
The legislative expositions speak but one language on this question. Thus the various acts on the subject of naturalization which have been passed by Congress presuppose that all who are to be benefited by their provisions were born abroad. They abound in expressions of this sort, viz.: the country "from which he came ;" all "persons who may arrive in the United States;" the country whence they migrated is to be stated, and the like. This language is inappropriate to a person who was born here, and wholly inapplicable to one who has always resided in the country. If Julia Lynch had remained here till she was of age, the argument in regard to her citizenship would be no different, because during the intervening time she would have been incapable of election. In this state, the constitution adopted by the people in 1822, provides that no person except a native citizen of the United States shall be eligible to the office of governor. Native citizen is used as contradistinguished from citizens of foreign birth, and as a term perfectly intelligible and definite. It is based upon the assumption that there was a known rule of law, ascertaining who were native citizens of the United States; and as has already been shown that there was no such rule known, except that of the common law. In various statutes which have been enacted from time to time for more than fifty years past, to authorize aliens to take, purchase, hold and convey real estate, the expression used by the legislature in declaring the extent of the rights granted, is that they are to be as full as those of "any natural born citizen," or of "natural born citizens." (See Laws of 1806, ch. 164, § 1, 3; of 1807, ch. 123; of 1808, ch. 175; of 1812, ch. 240; of 1825, ch. 310; 1 Rev. Stat., 720; and many others, both general and particular in their application.)
3 Owen 252
Chancellor Kent follows Blackstone in his division of the inhabitants of our country into aliens and natives. And he says: "Natives are all persons born within the jurisdiction of the United States ;" and "an alien is a person born out of the jurisdiction of the United States." The exceptions which he makes, do not affect the present question. (2 Kent's Comm., 39, 49, 2d ed.)Judge Wilson, in his law lectures, delivered soon after our national government was organized, says that an alien, according to the notion commonly received as law, is one borne in a strange country, and in a foreign society, to which he is presumed to have a natural and a necessary allegiance.
3 Owen 254
The Chief Justice further says "It was therefore then considered the law of the land, that all persons born within the territories of the government and people, although before the declaration of independence, were born within the allegiance of the same government and people, as the successor of the former sovereign, who had abdicated his throne." "And as the inhabitants of England, born in the reign of the second James, were considered as born within the allegiance of his successor, William the Third; because born in the territory of which he was the sovereign, he having succeeded by parliamentary designation; so all persons born within the territories of the Province of Massachusetts Bay during the reign of the late King, are considered as born within the allegiance of the commonwealth of Massachusetts, as his lawful successor,"The Chief Justice further says; "From the preceding observations, it is very clear, that the common law, which was in force, had superseded the necessity of defining by statute, alienage or allegiance. And from the definitions of alienage and allegiance, the nature and effect of naturalization and of expatriation are manifest.
Regarding Vattel and his like, the Opinion covers Vattel, Pufendorf, Schhmier, Domat, and Burlamaqui.
3 Owen 256
Vattel says, the natives, or indigenes, are those born in the country, of parents who are citizens. 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 stranger, it will be only the place of his birth, and not his country. (Vattel's Law of Nations, B. 1, ch, 16, § 212.) He further says, in reference to the inquiry whether children born of citizens in a foreign country, are citizens, that the laws have decided the question in several countries, and it is necessary to follow their regulations. That in England, being born in the country, naturalizes the children of a foreigner. That by the law of nature alone, children follow the condition of their fathers and enter into all their rights. But he puts forth that opinion, on the supposition, that the father has not entirely quitted his country in order to settle elsewhere. If he has fixed his abode in a foreign country, he is become a member of another society, at least as a perpetual inhabitant, and his children are so too. (lbid § 214, 215. And see § 216.) Thus the rule of Vattel, is controlled by the intention with which the father takes up his abode in the foreign country.Pufendorf, who is also cited in support of the civil law rule, says that all those who are born of a citizen, are deemed by that circumstance alone, to submit themselves to the sovereign power on which their parents depend. He however, does not speak of children born of citizens in foreign countries; and from, the context, as well as the residue of the section referred to, it is probable that his observations were intended to be limited to the children born in the state, who were the descendants of those who in theory first formed the civil government. (2 Pufendorf by Barbeyrac, 303, Liv. 7, ch. 2, § 20.)
3 Owen 257
These references show that the rule which the complainant derives from the writers on public law is not even in theory, clearly defined or uniformly held. That the most approved authorities, do not deviate from the rule of the common law, any farther than Judge Story has suggested that it is reasonable to deviate; and to establish such a departure, would involve the whole subject, as it respects the children of foreigners, in the obscurity ever attendant upon evidence of intention, the animus manendi, upon a change of residence; an obscurity the greater in these cases, because the question generally arises after the lapse of many years. The advantages to result from a resort to such an uncertain and fluctuating rule, are more ideal than substantial; and are completely over borne by its inconveniences, when contrasted with the simple and plain rule of the common law. The qualifications mentioned by Judge Story, and which are not universally established in the public law, are certainly unknown to the common law in England, and as established in the United States. There is no authority, and unless Mr. Dane's Abridgement be an exception, not a single work on American law, that asserts the existence of either of those qualifications.
Who cares? He was *NOT* a member of the Constitutional convention, nor a Delegate to any State ratifying convention, so he has no first hand knowledge of what they meant by "citizen."
It is based upon the assumption that there was a known rule of law, ascertaining who were native citizens of the United States; and as has already been shown that there was no such rule known, except that of the common law.
He should have read that Pennsylvania law book. It would have made him aware of the rule.
Defaulting to the common law out of ignorance is not a good result. Perhaps had he attended one of the conventions, he would have been better informed as to what they meant when they said "natural born citizen."