Natural Birthright Citizenship: Birthright of Blood According to English Common Law

My research has finally come full circle with an absolute and irrefutable conclusion and I want to thank all the patriots whom inspired me to research “out of the box”.

As I had already reported in my Congressional “Natural Born Citizen” series, in 1987 Michael Greve of the ‘Reason Magazine’ wrote that Prof. Lawrence Tribe is

[n]otorious for urging judges to go boldly where none have gone before…[T]ribe’s pretenses are a thin cover for their effort to mobilize the Constitution for left-liberal causes

As we already know, Lawrence Tribe was Obama’s law professor at Harvard whom Obama supposedly did extensive research for. What I conclude with, is research from the Harvard Law Review archives. Research that neither Tribe or Obama hoped would become public knowledge. For if this legal information cited by the US courts did become public; it would have immediately crushed Obama’s eligibilty for the presidency. And that is why, when it came to testimony for S.Res. 511, “A Bill Proclaiming John Sidney McCain III a natural born citizen“, Tribe was called in to give obfuscation to the exact meaning and intent of Article II qualifications for the presidency.

As I have said, the key to defining who the citizens are lies within the 14th Amendment phrase “subject to the jurisdiction thereof” and more specifically, what “jurisdiction” does it pertain to? Therein lie the question which must be answered. And as I have previously reported, the US Supreme Court has stated that unless otherwise specified in the Constitutional Amendment itself or in subsequent legislation, jurisdiction cannot have conflicting consequences. It cannot have one meaning for persons born and another for persons naturalized. The subsequent legislation, the 1868 Expatriation Act, passed just days after the 14th was ratified defined what the term jurisdiction in the 14th pertained to. It is political jurisdiction, owing exclusive allegiance to the United States, the same as it had been since the revolution. But how do we know this? By researching “out of the box” that’s how.

The legal premise that the founders grounded the revolution on was the “inalienable right of expatriation” that every person is born with.

Declaration of Independence ; July 4, 1776

When, in the course of human events, it becomes necessary for one people to dissolve the political bands which have connected them with another, and to assume among the powers of the earth, the separate and equal station to which the laws of nature and of nature’s God entitle them, a decent respect to the opinions of mankind requires that they should declare the causes which impel them to the separation.

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable rights, that among these are life, liberty and the pursuit of happiness. That to secure these rights, governments are instituted among men, deriving their just powers from the consent of the governed.

Expatriation Act July 27, 1868

Whereas the right of expatriation is a natural and inherent right of all people, indispensable to the enjoyment of the rights of life, liberty, and the pursuit of happiness

Expatriation is a God-given right that no man can take from another. And while there are plenty of revolutionary era documents supporting this, for the purposes of eschewing todays leftist propagandists like Tribe, the lame stream media & the Obama camp, who see only a revisionist theory based on their interpretation of what the United States future should look like. I will keep my argument within the scope of the 14th Amendment & the 1868 Expatriation Act ,which is still on the books and which gives Congress the legal authority to continue to require that all naturalized citizens must formally swear an oath renouncing & abjuring forever any & all foreign allegiances. This will also include the official US Government documents, with current supporting legal references, that contain the meaning of language of the 14th & the Expatriation Act. These 2 laws cannot be defined exclusively, they must be defined inclusively otherwise they completely cancel each other out leaving both of them wholly unconstitutional & without authoritative legal weight for the Federal or State governments & courts to act upon.

After decades of foreign nations, but especially those under British feudal law, ignoring this right of expatriation, the Buchanan Administration put out two official releases(9 Ops. ATT’Y GEN. 3.56 (1859)) which stated:

 “The question then arises, what rights do our laws confer upon a foreigner by granting him citizenship? I answer, all the rights, privileges and immunities which belong to a native-born citizen, in their full extent with the single qualification that under the constitution, “no person except a natural born citizen is eligible to the office of President…”

“Here none but a native can be President…A native and a naturalized American may therefore go forth with equal security over every sea and through every land under Heaven…They are both of them American citizens, and their exclusive allegiance is due to the Government of the United States. One of them never did owe fealty elsewhere, and the other, at the time of his naturalization…threw off, renounced and abjured forever all allegiance to every foreign prince, potentate, State and sovereignty whatever, and especially to that sovereign whose subject he had previously been.”

These official releases were used by Congress who authored the legislation & later the Courts in defining the words set forth in the 1866 Civil Rights Act which later became the 14th Amendment as well as the 1868 Expatriation Act. The US government declared once and for all that exclusive political allegiance to the United States government is what makes a citizen. A person can be born a native to the soil and yet not be a citizen because upon their birth, they did not owe exclusive allegiance to the US Government. They were considered inhabitants either here permanently or temporarily depending in status of their parents at the time of birth. Only if the parents became naturalized prior to the child turning 21, or upon the child acting on their own accord at or after the age of 21 do they become legally & officially a US citizen.

So what has all this got to do with the 14th & the Expatriation Act? Fast forward to 1922 the US Assist Solicitor General, Richard W. Flournoy, citing ATT’Y General Black.

Attorney-General Black, whose opinion of July 4, 1859, concerning the case of Christian Ernst, a naturalized American citizen of Hanoverian origin who was arrested upon his return to Hanover, has become a classic on this subject. It seems worth while to quote from this notable opinion:

“The natural right of every free person, who owes no debts and is not guilty of any crime, to leave the country of his birth in good faith and for an honest purpose, the privilege of throwing off his natural allegiance and substituting another allegiance in its place—the general right, in one word, of expatriation—is incontestible. I know that the common law of England denies it; that the judicial decisions of that country are opposed to it; and that some of our own courts, misled by British authority, have expressed, though not very decisively, the same opinion. But all this is very far from settling the question. The municipal code of England is not one of the sources from which we derive our knowledge of international law. We take it from natural reason and justice, from writers of known wisdom, and from the practice of civilized nations. All these are opposed to the doctrine of perpetual allegiance. It is too injurious to the general interests of mankind to be tolerated; justice denies that men should either be confined to their native soil or driven away from it against their will.”

Under the oppressive feudal law of perpetual allegiance, subjects had to get permission from the Sovereign, the King, before traveling outside of the limits of the territory. Everywhere they traveled, their allegiance and that of their children whether born in or out of the territorial confines of the Crown, was due first and foremost to the Crown. Likewise, children born to aliens within the territorial limits of the Crown owed fealty first to the Sovereign Crown and could not leave the limits of the territory without express permission from it.

This is not, nor ever has been the rule of law in the United States since the revolution. When independence was declared, the founding fathers declared that, from that moment on, the individual is Sovereign and needs no permission from the government to travel from state to state, or country to country. The fact that passports are required is so that while traveling outside of US territory, one has an official document stating that they are a US citizen and therefore the US Government has the right,  under the law of nations, to step in to protect them legally should the need arise as it did in the Ernst case. This sovereignty was expressed in no uncertain terms within the confines of US Constitution.

We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America…

Article IV, Section. 2.The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States

Throughout the early 20th century after the WKA decision was handed down by the US Supreme Court, by a Justice whose own appointment was questionable, many changes were made to the US Code. However, one thing that has remained constant is the oath that all foreigners must take before becoming a US citizen. Since WKA relied so heavily on English feudal law for its decision, what was the real original common law of England pertaining to those who were the sovereigns of the nation? For that we go to the Michigan Law Review (50 Mich. L. Rev. 927 1951-1952) that is cited by Harvard law professors.

 The result of the principal case is to limit the category “natural born” to those who become citizens under the doctrine of jus soli; this makes it co-extensive with the term “native born.” Of importance in this problem is whether these children took the nationality of their parents at common law, for if they are citizens by virtue of their birth and without the aid of statute, then certainly they are “natural born” and not “naturalized” citizens. In most continental European countries the doctrine of jus sanguinis is applied. England follows the same rule, both by virtue of the common law and under a declaratory statute of 1350 guaranteeing such application. As a result, it is generally concluded, despite occasional dissent,” that jus sanguinis was the common law doctrine. (8 1 Willoughby, The Constitution §202 (1922); Flournoy and Hudson, Nationality Laws (1929); Harvard Research in International Law on Nationality, 23 AM. J. INT. L., Spec. Supp. 80 (1929).

In the 50’s, there was still speculation as to whether a person born in a US territory, but not yet a state, could become president. There were also surmounting concerns over the dual nationality that children born on US soil to parents, either of whom were foreigners, but not diplomats, claimed to have because of the erroneous decision sent down by the Supreme Court in the 1898 WKA case. The one constant that the US had to rely on was not that of the soil, but that of the blood & of the 1868 Expatriation Act. Had WKA removed himself from the US after that decision, the fact that he had formally renounced the allegiance to China that he had at birth, is what gave him his right to his citizenship. At the coming of age, he made a declaration as to which country he wished to attach his allegiance to before the US State Dept. issued him a passport.

These questions would once again be laid to rest by Harvard (66 Harv. L. Rev. 707 1952-1953) and their repeated reference back to the 1859 OP released by the Buchanan Administration and ATT’Y Gen Black.

For most purposes, it is not necessary to determine the method by which citizenship has been acquired. But the problem of whether a citizen is natural born or naturalized is important in such areas as denaturalization, expatriation, and qualification for certain offices such as the presidency. (For a discussion of the distinctions made in expatriation, see pp. 739-42 infra.)

When a person is a citizen by jus sanguinis, is he natural born or naturalized? The answer. to this question will determine the applicability of certain expatriation provisions and the citizen’s qualification for the presidency. Some courts, relying on dicta in United States v. Wong Kim Ark equating natural born with native born, have indicated that those who claim citizenship solely by parentage are naturalized citizens. But this conclusion seems opposed to the common law concept -which may be assumed to be written into the constitutional requirements for the presidency -that jus sanguinis confers naturalborn citizenship. (See 5o Mich. L. REV. 926 (1952).)

Only persons who held an allegiance to a foreign nation either at birth or naturalization are subject to deportation, because that person did not owe exclusive allegiance to the United States at either time. So how did Harvard determine who could & who could not lose their citizenship? For that we go to 73 Harv. L. Rev. 1512 1959-1960.

…later there was considerable controversy whether aliens who became American citizens could effectively cut their original ties. This was a different issue from that discussed in Perez and Trop. The earlier controversy resulted in the celebrated opinion presented by Attorney General Black to President Buchanan, and the Expatriation Act of 1868,” both upholding the individual’s right of expatriation. The vigor of the American point of view had its effect upon Great Britain, where in 1869 a Royal Commission recommended the end of a system of perpetual allegiance. (9 Ops. ATT’Y GEN. 3.56 (1859). Act of July, 27, I868, ch. 249, I5 Stat. 223.)

A person born with conflicting allegiances, and who has never formally renounced & abjured one of those allegiances they claim to have, will not be left stateless. The big claim that the progressive revisionists make in their court arguments today is that somehow a child born on US soil to foreigners will be left stateless. This simply is not true. The revisionists use the argument to inject emotion & fear to further their cause which is to establish global citizenship, where there are no borders between nations. In other words, they are using our republican form of government to establish a “Global Republic” under one government of the United Nations.

So folks, it isn’t the government who forms (births) the citizens, it is the people themselves who’s inalienable right of expatriation gives them the right to choose which government they will attach their allegiance to. And since children at birth or prior to the age of consent (21) are not able to do so legally, they are therefore under their parents governance as well as the governance of the government in which the parents owe allegiance to. Their nationality & allegiance is that of their parents.

Under the laws of nations from time immemorial, their nationality follows that of their fathers.

 Under the laws of nations from time immemorial, a family is a unit comprised of but one allegiance, that of the husband/father. This is necessary for the survival & preservation of all civilized societies, but especially that of a Republic. A doctrine that has been written down from time immemorial.

Sovereign birthright citizenship is the common law “Right of Blood” in which every King of England depended upon to preserve to their posterity, their right to the Sovereign throne & the right to govern the kingdom. Since the July 4, 1776  Declaration of Independence & the ratification of the US Constitution, this birthright citizenship has belonged exclusively to the children, the posterity, of United States citizens.

We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.”

This right does not, nor ever has it ever belonged to the children of foreigners who by chance are born on US soil, regardless or not that the parents happen to be diplomats . At birth, their primary fealty is to the foreign government of their parents’ allegiance & that allegiance is what establishes their nationality at birth.  Therefore, as Supreme Court Justice Waite, in Minor v Happersett, as well as Justice Grey, in Elk v Wilkins concluded, there are but two paths the citizenship, either by birth or by statute. Children who are born to an alien father/mother on US soil, are citizens by statute, not by birth. Their citizenship is one of election upon renunciation of the foreign allegiance should they so choose to claim it and by this fact alone, a loss of US citizenship could never deem them stateless.

Linda Melin, citizen researcher

Copyright 2011 : This article may not be reprinted for distribution or cross-posted on the internet without the express consent of and attribution to the author.

6 thoughts on “Natural Birthright Citizenship: Birthright of Blood According to English Common Law

  1. DiogenesLamp August 30, 2011 at 12:33 pm

    Would it be possible for you to post images of the salient paragraphs of the books you are citing?

    • constitutionallyspeaking August 30, 2011 at 2:02 pm

      These quotes are not from books per say. They are from copyrighted material from legal journals of law schools obtained through HeinOnline & JSTOR; therefore, no images are allowed and thus the complete law journal reference is cited. However, the 1859 Buchanan Admin OP that was published throughout the country in 1859 is available along with many other free to the public links to historical evidence of the intent of the founders on citizenship at the following article link. When ever possible, a link is always provided.

  2. DiogenesLamp August 30, 2011 at 5:09 pm

    Okay, thanks. I thought it might be something like that. I just thought people would find actual pages from a document more convincing. It looks like the sources you are citing require paid accounts. Not so easy for people to check on independently, but given the circumstances, that is the best that can be done I suppose.

  3. DiogenesLamp August 31, 2011 at 7:51 am

    By the way, you do excellent work and it is greatly appreciated.

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