“But since the Minor v Happersett court says “Authorities”, which is plural, perhaps you can tell me who else other than Rawle was pushing the idea that American Citizenship descended from English common law dealing with “subjects”?”
IMO, Justice Waite is referring to other Justices on his Court. Specifically Justice Miller and Justice Field. They appear to have different views on the term “subject to the jurisdiction.”
Justice Miller - “The phrase, “subject to its jurisdiction” was intended to exclude from its operation children of ministers, consuls, and citizens or subjects of foreign States born within the United States.” Slaughterhouse Cases, 83 U.S. 36 (1872)
Justice Field in his dissenting opinion in the Slaughterhouse Cases pointed to the dissent by Justice Curtis in the Dred Scott decision. - “In the Dred Scott case, this subject of citizenship of the United States was fully and elaborately discussed. The exposition in the opinion of Mr. Justice Curtis has been generally accepted by the profession of the country as the one containing the soundest views of constitutional law.”
And in Dred Scott, Justice Curtis wrote, “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.”
Later Justice Fields explained his opinion - “The first section of the fourteenth amendment to the constitution declares 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. ‘ This language would seem to be sufficiently broad to cover the case of the petitioner. He is a person born in the United States. Any doubt on the subject, if there can be any, must arise out of the words ‘subject to the jurisdiction thereof.’ They alone are subject to the jurisdiction of the United States who are within their dominions and under the protection of their laws, and with the consequent obligation to obey them when obedience can be rendered; and only those thus subject by their birth or naturalization are within the terms of the amendment. The jurisdiction over those latter must, at the time, be both actual and exclusive. The words mentioned except from citizenship children born in the United States of persons engaged in the diplomatic service of foreign governments, such as ministers and ambassadors, whose residence, by a fiction of public law, is regarded as part of their own country. This ex-territoriality of their residence secures to their children born here all the rights and privileges which would inure to them had they been born in the country of their parents.”
“With this explanation of the meaning of the words in the fourteenth amendment, ‘subject to the jurisdiction thereof,’ it is evident that they do not exclude the petitioner from being a citizen. He is not within any of the classes of persons excepted from citizenship, and the jurisdiction of the United States over him at the time of his birth was exclusive of that of any other country.” In re Look Tin Sing 21 F 905 (1879)
Justice Waite then had two Justices on his Court wiho appear to have different views on birthright citizenship and the meaning of “subject to the jurisdiction.” That may be why they chose not to pursue the issue in Minor v Happersett.
Agreed StatementSTATEMENT
[excerpt]
It is admitted by the pleadings that the plaintiff is a native-born, free white citizen of the United States and of the State of Missouri; that the defendant is a registrar, qualified and acting as such; that the plaintiff, in proper time and in proper form, made application to him to be registered and that the defendant refused to register the plaintiff solely for the reason that she is a female, (and that she possesses the qualifications of an elector in all respects, except as to the matter of sex, as before stated.)
Both parties agreed, as a matter of stipulated fact, that Virginia Minor was a native-born, free white citizen of the United States and of the State of Missouri, and that she was qualified as an elector in all respects, except as to the matter of sex. The question before the Court was whether a woman, being a native-born, free white citizen, could be barred from voting solely on account of sex.
I am given to understand that the legal system does not approve of hearsay. Was Justice Miller and Justice Field present at the Constitutional convention, or did they perhaps get their information from someone else?
Maybe I am looking at this wrong. When I hear people speak of "authorities", I generally take them to mean someone who knows what they are talking about on a particular subject. Perhaps Justice Waite is referring to his comrades, but I don't consider sources to be credible unless they are primary sources. (A trait I think the legal system generally shares.)
Also, I don't think the context of that statement about "authorities" was regarding jurisdiction, but was instead about whether there was any doubt that a person born to citizen parents was a citizen. They said there was no doubt, but for people born here of parents who were not citizens, there are doubts.
I know William Rawle spread the false notion that American citizenship was based on British Common law, even though he had been corrected on this particular point by the legal authorities of his own time period, but I was wondering if there were any other prominent "authorities" who had written law books where they also made this claim.
From past discussions I seem to remember that there were. Not many, but I remember there were some.