Did Common Law Really Grant Automatic US Citizenship Upon Birth Regardless Of Parentage? Part II (Bumped)

At the time of the revolution, citizens either renounced their ties to the English crown, taking up their arms and joining the cause for freedom, or they held fast to English Monarchy and took up their arms and joined the British army. The only middle ground during the revolution was for those that deserted the British army to join the cause for freedom and remained loyal to the end of the revolution.

After that bloody war was over and the United States were free from the feudal form of government & Orwellian laws of England, the founding fathers set out to draft a new constitution, with limited powers for a national government, to replace the current Articles of Confederation which were hindering interstate commerce & citizenship travel due to the lack of a set of uniform laws. From the time of the Declaration of Independence to the passing of the US Constitution in 1789, the Articles of Confederation, which included extremely limited powers to a national congress, allowed for each state to adopt and enforced their own individual laws regarding property, commerce & citizenship.

From the founding, American citizenship is something every stifled subject of some foreign oligarchy dreams of acquiring and for most that have acquired American citizenship either by emigrating & going through naturalization or being born to those emigrants, they never let go of that pride and patriotism, making sure future generations would learn & know what it meant to be an American.

In the new country, the citizens were sovereign. The government of the people, by the people, for the people was adopted to ensure true freedom for all citizens for all time. Well, that is for all time that they worked earnestly to ensure it.

As a protection against foreign influences & intrigues, the founding fathers carefully and diligently worked to draft a constitution that would protect this from happening. Strict requirements were put in place for anyone who wished to attain to elected positions in the national government.  The President, Vice President, Senator or Congressman must have reached a certain age as well as had residency in the US for a number of consecutive years prior to attaining election to office. Then we get to citizenship. The president must be a ‘natural born’ citizen or a citizen of the United States at the time of the adoption of the constitution, however, Senators & Congressmen merely needed to be a citizen, so what is the difference. Why the 2 distinct verbiages?

To that, one only needs to go back to the debates of the Continental Congress & the Federalist Papers. Congress was comprised of many but the Executive was only comprised of 2. There was less chance for mischief to arise if only a couple of the elected officials in Congress were naturalized from foreign nations, however with only 2 in the Executive, there clearly was a need for more stringent requirements to guard against foreign influences & intrigues.

So, how do we define the difference between ‘citizen’ & ‘natural born’ citizen? Liberal constitutional scholars and progressive legalese rely on English common law that was in place prior to the revolution. Their interpretation is that if you are born of the soil, you are a natural born citizen and they wallow in diluted elitism by citing historical foreign law & case precedent, when in fact there is plenty of American law & legal case history for one to learn from.  Now, as I have said before, to think that the founding fathers & patriots fought a bloody war only to adopt the same definition of citizenship that they were oppressed under by the English Monarchy is to believe that there never was a bloody war to gain freedom from it. The feudal form of government that the British adopted did not allow for natural rights for all citizens. All rights were granted to the people by the government of the Monarchy, the Monarchy was the sovereign not he people. In the very 1st US Supreme Court decision (Chisholm v. Georgia) written by Chief Justice John Jay, we find our 1st clue as to the type of citizenship the founding fathers adopted for the new nation:

[T]he sovereignty of the nation is in the people of the nation, and the residuary sovereignty of each State in the people of each State…

[A]t the Revolution, the sovereignty devolved on the people; and they are truly the sovereigns of the country, but they are sovereigns without subjects…]

Chief Justice John Jay was also the person who sent this historical letter to George Washington the summer of 1787 before the constitution was finalized:

[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.]

So, if the people are the sovereigns, not the government, then where did the definition come from? For that we go to the very 1st commentaries on US law, Lectures on Law by Justice James Wilson, 1791. In the lectures Wilson expounds heavily on early philosophers and the different forms of government from the earliest of times that have been recorded. When he finally gets to discussing the laws adopted by the Continental Congress and ratified by the states, he writes:

“The law of nature, when applied to states and political societies, receives a new name, that of the law of nations. This law, important in all states, is of peculiar importance in free ones. The States of America are certainly entitled to this dignified appellation…But if the knowledge of the law of nations is greatly useful to those who appoint, it surely must be highly necessary to those who are appointed…As Puffendorff thought that the law of nature and the law of nations were precisely the same, he has not, in his book on these subjects treated of the law of nations separately; but has every where joined it with the law of nature, properly called so…the law of nature is applied to individuals; the law of nations is applied to states.”

Natural law did not always elude that of the Monarchy though. Early definitions of ‘natural born’ subject confined it to children born to parents, both of whom were ‘natural born’ subjects. However, to replenish their depleting armies from the many wars & to increase the Treasury, the Monarchy expanded the definition of ‘natural born’ subject to include  all children born on the soil, regardless if the soil was that of England, provided that the father was a natural born subject. For foreigners whose children by chance were born on English soil, the Monarchy also laid claim to them. This is the feudalism form of government commonly known as a democracy or dictatorship. The reasoning of today’s progressives that any child born on US soil, regardless of parentage, is thusly a ‘natural born’ citizen of the US is not the original definition that was initially adopted by the Monarchy and the definition that the founding fathers were highly learned in.

So what did the law of nations say as to who were the citizens of a nation?

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.

According to natural law which is that of the law of nations children follow the conditions of the father. But was this really the law adopted by the US? The 1866 act passed by congress stated:

“All persons born in the United States, and not subject to any foreign power excluding Indians not taxed, are hereby declared to be citizens of the United States.”

In 1885, US Secretary Of State under Grover Cleveland, Thomas Bayard, decided  that ‘the son of a German subject, born in Ohio, was not a citizen under the statute or the Constitution, because “he was on his birth ’subject to a foreign power,’ and ‘not subject to the jurisdiction of the United States’ Thomas Bayard was the fourth generation of his family to serve in the U.S. Senate and was considered a prominent Bourbon Democrat.

Another interesting thesis  I recently had the pleasure of finding in historical archives is one of a George H. Yeaman, another constitutional scholar from the mid-late 1800’s who certainly would have been familiar with Kent, Story & Wilson’s works which were the only American works for law students to study during that time. Yeaman was the US Minister to Copenhagen from 1865-1870 and was also a professor of law at Columbia College. In 1867 Yeaman wrote a thesis titled:  Allegiance and citizenship: An inquiry into the claim of European Governments to Exact Military Service of Naturalized Citizens of the United States. In the thesis, Yeaman writes of the unconstitutionality of dual citizenship and its ill effects on sovereign citizens & the continued existence of our sovereign nation.

To quote from American writers and statesmen who maintain the liberal view on this subject would be to incur the objection of attempting to sustain our position by our own authorities. To accept as law the opinions of those  modern European writers who have maintained the theory of  indissoluble allegiance and continuing, unavoidable duty to serve the crown, would be to yield the contest for truth and right, to those who discover a supposed interest in. maintaining what we hold for error. It will be far more satisfactory to rely upon general principles, and, so far as authority is invoked, to seek for it in the works of those great European masters of the Laws of Nature and of Nations who built up and illustrated the science of which they are the acknowledged fathers…

Vattel discusses the matter more explicitly than any who had preceded him in the science of natural and public law and international jurisprudence…

every man, on coming of age, may determine for himself if his interest is to remain a member of the society in which he was born…

writers, statesmen, diplomats, and legislators who have treated allegiance, which is imposed by the accident of birth, as an indestructible tie, have labored against reason, against nature, against the highest authority and against common sense practical to mankind. The states which adopt this theory are far municipal regulations, an extraterritorial effect, in this, that though they may enforce them against those who under the laws of nations does not subject a foreigner to any but the command of his own government…

Progressive scholars and legalese of today would like you to believe that since the term ‘native-born’ was often spoken when discussing and writing about the presidential qualification, those scholars were inherently implying that the term native as adopted merely meant born and had nothing to do with allegiance.

Enter James Kent, who was the 1st professor of law at Columbia College from 1793-1798 during which time he also resumed his seat at the NY state assembly. In 1798 Kent then went on to serve as a Justice on the NY State Supreme Court where he became the Chief Justice in 1804. Here is the Kent citing that the very liberal progressives want you to see and uses adnausium.

“As the President is required to be a native citizen of the United States…. Natives are all persons born within the jurisdiction of the United States.” James Kent, COMMENTARIES ON AMERICAN LAW (1826)

The progressives cite from 2 completely different sections in Kent’s commentaries as if the above phrase was all part of the same section. What they do not tell you is that the latter part, natives are all persons born within the jurisdiction of the United States is cited from Kent’s lecture on A1, S8, C4, the power granted to Congress to establish an uniform Rule of Naturalization.

The actual text of Kent’s commentary on the qualifications for president taken from Kent’s original works, not cites from unknown sources and taken out of the original context, state something quite different.

(2.) The constitution requires that the President shall be a natural born citizen, or a citizen of the United States at the time of the adoption of the constitution, and that he shall have attained to the age of thirty-five years, and shall have been fourteen years a resident within the United States. Considering the greatness of the trust, and that this department is the ultimately efficient executive power in government, these restrictions will not appear altogether useless or unimportant. As the President is required to be a native citizen of the United States, ambitious foreigners cannot ; intrigue for the office, and the qualifications of birth cuts off all those inducements from abroad to corruption, negotiation and war, which have frequently and fatally harassed the elective monarchies of Germany and Poland, as well as the Pontificate at Rome… (James Kent, Commentaries on American Law, Part II: Of the Government and the Jurisprudence of the United States, 1826) 

Lets break it down:

As the President is required to be a native citizen of the United States, ambitious foreigners cannot; intrigue for the office ( here he is speaking of the grandfather clause ( a citizen at the time of the adoption of the constitution),

Then he goes onto part II:

and the qualifications for birth (natural born citizen) cuts off all those inducements from abroad to corruption, negotiation and war,

There you have it. As the President is required to be a native citizen AND the qualifications for birth. Kent was talking about each qualification respectively, not inclusively.

As you can see, the progressives go to great lengths to twist and turn the truth with no regard as to the law. Liberal progressive legal scholars believe that the meaning of the words written in the constitution are ever changing and that the constitution itself is a living, breathing blank vessel for liberal interpretation. The radically progressive Professor of law at Harvard, Laurence Tribe, writes in the opening of his newest book that [i]nterpreting the constitution is an ‘equal-opportunity’ reality that is not confined to the text of the document.]

Moving on, under the progressive interpretation of ‘native’, which is that of the feudal form of government, mere chance of birth on the soil is equivalent to perpetual allegiance. So was this really the case? Let’s continue with the Commentaries of James Kent, who wrote about just exactly what the term ‘natives’ meant. This is the actual text of the above mention cite the progressives had you believe was under qualifications for president, when in fact it is found under immigration & naturalization.

James Kent, Commentaries  1:397–98; 2:33–63(1826-1827)

We are next to consider the rights and duties of citizens in their domestic relations, as distinguished from the absolute rights of individuals, of which we have already treated. Most of these relations are derived from the law of nature, and they are familiar to the institutions of every country, and consist of husband and wife, parent and child, guardian and ward, and master and servant. To these may be added, an examination of certain artificial persons created by law, under the well known name of corporations. There is a still more general division of the inhabitants of every country, under the comprehensive title of aliens and natives, and to the consideration of them our attention will be directed in the present lecture.

(1.) Natives are all persons born within the jurisdiction of the United States. If they were resident citizens at the time of the declaration of independence, though born elsewhere, and deliberately yielded to it an express or implied sanction, they became parties to it, and are to be considered as natives; their social tie being coeval with the existence of the nation. If a person was born here before our independence, and before that period voluntarily withdrew into other parts of the British dominions, and never returned; yet, it has been held, that his allegiance accrued to the state in which he was born, as the lawful successor of the king; and that he was to be considered a subject by birth. It was admitted, that this claim of the state to the allegiance of all persons born within its territories prior to our revolution, might subject those persons who adhere to their former sovereign, to great inconveniences in time of war, when two opposing sovereigns might claim their allegiance; and, under the peculiar circumstances of the case, it was, undoubtedly, a very strong application of the common law doctrine of natural and perpetual allegiance by birth. The inference to be drawn from the discussions in the case of M’Ilvaine v. Coxe, would seem to be in favour of the more reasonable doctrine, that no antenatus ever owed any allegiance to the United States, or to any individual state, provided he withdrew himself from this country before the establishment of our independent government, and settled under the king’s allegiance in another part of his dominions, and never afterwards, prior to the treaty of peace, returned and settled here. The United States did not exist as an independent government until 1776; and it may well be doubted whether the doctrine of allegiance by birth be applicable to the case of persons who did not reside here when the revolution took place, and did not, therefore, either by election or tacit assent, become members of the newly created state.The ground of the decision in the latter case was, that the party in question was not only born in New-Jersey, but remained there as an inhabitant until the 4th of October, 1776, when the legislature of that state asserted the right of sovereignty, and the claim of allegiance over all persons then abiding within its jurisdiction. By remaining there after the declaration of independence, and after that statute, the party had determined his right of election to withdraw, and had, by his presumed consent, become a member of the new government, and was, consequently, entitled to protection, and bound to allegiance. The doctrine in the case of Respublica v. Chapman, goes also to deny the claim of allegiance, in the case of a person who, though born here, were not here and assenting to our new governments, when they were first instituted. The language of that case was, that allegiance could only attach upon those persons who were then inhabitants. When an old government is dissolved, and a new one formed, “all the writers agree,” said Ch. J. M’Kean, “that none are subjects of the adopted government who have not freely assented to it.” The same principle was declared by the Supreme Court of this state, in Jackson v. White… 

According to Kent, the ‘natives’ were the adults who elected to renounce the Monarcy and take allegiance with the new nation of the United States and as so went their allegiance, so went that of their wives & children.

Looking into the legal definition of the terms that are used by the early scholars that were taken from the law of nations also helps us to understand what the original intent of the founding fathers of the meaning of ‘natural born’ citizen was is also a task one cannot divest themselves of.

tacit: Implied, inferred, understood without being expressly stated

assent: An intentional approval of known facts that are offered by another for acceptance; agreement; consent

Children at birth can not speak their consent to be a citizen and as it was in England and all nations at the time of the adoption of the constitution, it was the father who gave the consent for the child to be a citizen unless the child be born out of wedlock and if the father made no claim to the child prior to the child coming of age..

[A]s the child ascends from the father, so does his citizenship through tacit assent] as stated by Kent. Therefore the children become citizens of the society in which their fathers are citizens.

I also had a hard time conclusively finding specific government documentation of this that was not mere debate of congress or declarations made by those that drafted the 1866 Act, the 14th and the Expatriation Act of 1868. The halls on the online Library of Congress are exhaustive. One has to look at all the laws pertaining to all US citizenships to find a conclusive definition for ‘natural born’ citizen as required in Article 2, Section 1, Clause 5 of the Constitution.

The 1st finding came at a genealogy page in the National Archives on the history of immigration and its laws. For years now we have been stating that at the time of the adoption of the constitution, women & children followed that of the husband and father which is that of the laws of nations. Children of unwed mothers followed the condition of the mother which was that of her father and to this we now have government confirmation.

Naturalization Act of 1790 (1 Stat. 103)

The 1st major exception to this 1790 Act was that “derivative” citizenship was granted to wives and minor children of naturalized men. From 1790 to 1922, wives of naturalized men automatically became citizens. This also meant that an alien woman who married a U.S. citizen automatically became a citizen.

(Conversely, an American woman who married an alien lost her U.S. citizenship, even if she never left the United States.) From 1790 to 1940, children under the age of 21 automatically became naturalized citizens upon the naturalization of their father.

Further confirmation comes from the SoundexIndex to Naturalization  Petitions for the United States District and Circuit Courts, Northern District of Illinois, and Immigration and Naturalization Service District 9 (1840-1950)

Under the section on the background of Naturalization . . . .” (A1, S8, C4) this official government document states that:

Married women and children under the age of twenty-one derived citizenship from their husband or father respectively. Children of unsuccessful applicants could apply for citizenship in their own right, at the age of twenty-one.

Illinois state voting law in 1919, which could not supersede the requirements for citizenship that was laid out in the US constitution stated that:

A woman born in the United States of foreign parents, regardless of whether either of her parents was naturalized, is a citizen, unless such parents were temporarily in the United States. (see above naturalization of children born on US soil to foreign parents after their coming of age) A woman citizen of the United States who marries an alien thereby forfeits her citizenship, whether such alien is a resident of the United States or not.

These official government documents conclusively support what we have been reporting and that is, at the founding of the United States there were 3 kinds of citizens. The natural born, children born to the US citizens that renounced the Monarchy after the Declaration of Independence and were subsequently the original native(inhabitant) citizens born on the soil, but some of the founding patriots were even native(inhabitant born overseas such as Hamilton) citizens by naturalization according to Supreme Court Justice Joseph Story, who was also the founder of Harvard Law School, in Volume 3, Section 73: § 1473 of his Commentaries on the Constitution, 1933:

It is indispensable, too, that the president should be a natural born citizen of the United States; or a citizen at the adoption of the constitution, and for fourteen years before his election. This permission of a naturalized citizen to become president is an exception from the great fundamental policy of all governments, to exclude foreign influence from their executive councils and duties. It was doubtless introduced (for it has now become by lapse of time merely nominal, and will soon become wholly extinct) out of respect to those distinguished revolutionary patriots, who were born in a foreign land, and yet had entitled themselves to high honors in their adopted country. A positive exclusion of them from the office would have been unjust to their merits, and painful to their sensibilities. But the general propriety of the exclusion of foreigners, in common cases, will scarcely be doubted by any sound statesman. It cuts off all chances for ambitious foreigners, who might otherwise be intriguing for the office; and interposes a barrier against those corrupt interferences of foreign governments in executive elections, which have inflicted the most serious evils upon the elective monarchies of Europe. Germany, Poland, and even the pontificate of Rome, are sad, but instructive examples of the enduring mischiefs arising from this source. (emphasis mine)

At the formation of a new nation, a citizen can be a native, but not all natives are citizens. Being a ‘native’, did not automatically make one a citizen according to Wilson, Kent & Story. Citizenship required complete allegiance and there was no law that allowed for one to retain the former while aligning with the latter. I also found it quite intriguing that everyone of these 1st scholars on American law & the US Constitution began their works by expounding on the Law of Nations as well as the different forms of government and that which was adopted by the United States was that of the Republic, not that of a Democracy.

In my previous series, The Congressional Natural Born Citizen, I laid  out dozens of attempts over the past 35+ years where Congress has attempted to change the qualification requirements for president as well as change the definition of natural born so that it includes children of not yet naturalized immigrants, whether they be here legally or not. Thanks to citizenscott, a commenter at The Right Side of Life (TRSOL), I now have another document to add to that file. It is a 1987  Oklahoma City University Law Review  wherein they conclude:

 [t]he natural born citizen qualification, although embedded into our Constitution, serves no useful purpose.

In 2008, another liberal progressive appeal  appeared titled: An Idea whose time has come—the curious history, uncertain effect, and need for amendment of the “NATURAL BORN CITIZEN” requirement for presidency by Lawrence Friedman. Mr Friedman lists many more congressional attempts to amend presidential qualifications. His list dates back to 1961 but he also brings to light another challenged candidate in the 20th century and he also has a funny notion of what makes law. Hmm…assumptions are now the rule of law?

It is now generally assumed that the term “natural born” is synonymous with “native born. 

Many progressives to this date, claim the need for the amendment is simply because the requirement that a President must be a natural born citizen is barbaric and does not reflect the view of the mainsteam US public today and they base their findings on assumptions; however it is not the law of assumptions that we are seeking to define & uphold. It is the written law at the time of ratification that definitively sets the requirements for president. The written law which is still in place today. As George Washington proclaimed in his farewell address:

If, in the opinion of the people, the distribution or modification of the constitutional powers be in any particular wrong, let it be corrected by an amendment in the way which the Constitution  designates. But let there be no change by usurpation; for though this, in one instance, may be the instrument of good, it is the customary weapon by which free governments are destroyed. The precedent must always greatly overbalance in permanent evil any partial or transient benefit, which the use can at any time yield…

As avenues to foreign influence in innumerable ways, such attachments are particularly alarming to the truly enlightened and independent patriot. How many opportunities do they afford to tamper with domestic factions, to practice the arts of seduction, to mislead public opinion, to influence or awe the public councils. Such an attachment of a small or weak towards a great and powerful nation dooms the former to be the satellite of the latter.

Against the insidious wiles of foreign influence (I conjure you to believe me, fellow-citizens) the jealousy of a free people ought to be constantly awake, since history and experience prove that foreign influence is one of the most baneful foes of republican government…

Real patriots who may resist the intrigues of the favorite are liable to become suspected and odious, while its tools and dupes usurp the applause and confidence of the people, to surrender their interests…

 

For more on the history on American Citizenship, Allegiance & American Law  please visit the Heritage Foundation.