Allegiance and Citizenship

Talbot v. Janson, 3 Dall. 133 (1795), provides insight to then prevailing views regarding allegiance and citizenship.

What makes this particularly noteworthy is the background of the justices of the Supreme Court: Chief Justice Rutledge, and Justices Paterson, Wilson, Iredell, and Cushing.

John Rutledge – Continental Congress, delegate Constitutional Convention, signer of Constitution

William Paterson – delegate Constitutional Convention, signer of Constitution, framer of Judiciary Act of 1789

James Wilson – signer of Declaration of Independence, twice elected to the Continental Congress, delegate Constitutional Convention, signer of Constitution, leader of Pennsylvania Ratification Convention

James Iredell – leader of North Carolina Ratification Convention

William Cushing – Vice Chairman of the Massachusetts Ratification Convention

They are all variously Founders, Framers, and Ratifiers.

Excerpting points of interest from the case:

On the law, the following positions were taken in favour of the Appellant (Talbot).

But the abstract right of individuals to withdraw from the society of which they are members, is recognized by an uncommon coincidence of opinion; by every writer, ancient and modern; by the civilian, as well as by the common-law lawyer; by the philosopher, as well as the poet: It is the law of nature, and of nature’s god, pointing to ‘the wide world before us, where to chose our place of rest, and Providence our guide.’

With this law, however, human institutions have often been at variance; and no institutions more than the feudal system, which made the tyranny of arms, the basis of society; chained men to the soil on which they were born; and converted the bulk of mankind into the villeins, or slaves of a lord, or superior.

From the feudal system, sprung the law of allegiance; which pursuing the nature of its origin, rests on lands; for, when lands were all held of the Crown, then the oath of allegiance became appropriate: It was the tenure of the tenant, or vassal. Blac. Com. 366. The oath of fealty, and the ancient oath of allegiance, were, almost the same; both resting on lands; both designating the person to whom service should be rendered; though the one makes an exception as to the superior lord, while the other is an obligation of fidelity against all men. 2 Bl. Com. 53. Pal. 140. (ed. see “The Manner of Doing Homage and Fealty”, 17 Edw. 2 )

Hence arose the doctrine of perpetual and universal allegiance. When, however, the light of reason was shed upon the human mind, the intercourse of man became more general and more liberal; the military was gradually changed for the commercial state; and the laws were found a better protection for persons and property, than arms.

But even while the practical administration of government was thus reformed, some portion of the ancient theory was preserved; and, among other things, the doctrine of perpetual allegiance remained, with the fictitious tenure of all lands from the Crown to support it. Yet, it is to be remembered, that whether in its real origin, or in its artificial state, allegiance, as well as fealty, rests upon lands, and it is due to persons.

Not so, with respect to Citizenship, which has arisen from the dissolution of the feudal system; and is a substitute for allegiance, corresponding with the new order of things.

Allegiance and citizenship, differ, indeed, in almost every characteristic. Citizenship is the effect of compact; allegiance is the offspring of power and necessity. Citizenship is a political tie; allegiance is a territorial tenure. Citizenship is the charter of equality; allegiance is a badge of inferiority. Citizenship is constitutional; allegiance is personal. Citizenship is freedom; allegiance is servitude. Citizenship is communicable; allegiance is repulsive. Citizenship may be relinquished; allegiance is perpetual. With such essential differences, the doctrine of allegiance is inapplicable to a system of citizenship; which it can neither serve to control, nor to elucidate.

On the points of law, the Counsel for the Appellee (Jansen), held the following doctrines:

I. That Ballard and Talbot were Americans by birth, and had done nothing which could work a lawful expatriation. It is conceded that birth gives no property in the man; but, on the principles of the American government, he may leave his country when he pleases, provided it is done bona fide, with good cause, and under the regulations prescribed by law. 1 Vatt. B. 1 c. 19.s. 220. 221. 223. 224. Grot. B. 2. c. 5.s.24. Puff. B. 8. c. 11. p. 872, and provided, also, that he goes to another country, and takes up his residence there, under an open and avowed declaration of his intention. Thus, the rule is fairly laid down in 2 Heinec. B. 2. c. 10. s. 230.p.220; requiring from the emigrant not only an act of departure, with the design to expatriate, but the act of joining himself to another state.

On the 22nd of August, 1795, the Judges delivered their opinions seriatim.

Excerpts from their opinions:

Chief Justice Rutledge:

The doctrine of expatriation is certainly of great magnitude; but it is not necessary to give an opinion upon it, in the present cause, there being no proof, that Captain Talbot’s admission as a citizen of the French Republic, was with a view to relinquish his native country; and a man may, at the same time, enjoy the rights of citizenship under two governments.

Justice Paterson:

Ballard was, and still is, a citizen of the United States;

The act of the legislature of Virginia[1], does not apply. Ballard was a citizen of Virginia, and also of the United States. If the legislature of Virginia pass an act specifying the causes of expatriation, and prescribing the manner in which it is to be effected by the citizens of that state, what can be its operation on the citizens of the United States? If the act of Virginia affects Ballard’s citizenship, so far as respects that state, can it touch his citizenship so far as it regards the United States? Allegiance to a particular state, is one thing; allegiance to the United States is another. Will it be said, that the renunciation of allegiance to the former implies or draws after it a renunciation of allegiance to the latter? The sovereignties are different; the allegiance is different; the right too, may be different. Our situation being new, unavoidably creates new and intricate questions. We have sovereignties moving within a sovereignty. Of course there is complexity and difficulty in the system, which requires a penetrating eye fully to explore, and steady and masterly hands to keep in unison and order. A slight collision may disturb the harmony of the parts, and endanger the machinery of the whole. A statute of the United States, relative to expatriation is much wanted; especially as the common law of England, is, by the constitution of some of the states, expressly recognized and adopted. Besides, ascertaining by positive law the manner, in which expatriation may be effected, would obviate doubts, render the subject notorious and easy of apprehension, and furnish the rule of civil conduct on a very interesting point.

I am, therefore, of opinion, that the decree of the Circuit Court ought to be affirmed. Being clear on the preceding points, it supersedes the necessity of deciding upon other great questions in the cause; such as, whether Redick and Talbot were French citizens; whether the bill of sale was colourable and fraudulent; whether Redick, if a French citizen, did not lend his name as a cover; and whether the property did not continue in Sinclair and Wilson, citizens of the United States.

Justice Wilson:

As I decided this cause in the Circuit Court, it gives me pleasure to be relieved from the necessity of giving any opinion on the appeal, by the unanimity of sentiment that prevails among the judges.

Justice Iredell:

That a man ought not to be a slave; that he should not be confined against his will to a particular spot, because he happened to draw his first breath upon it; that he should not be compelled to continue in a society to which he is accidentally attached, when he can better his situation elsewhere, much less when he must starve in one country, and may live comfortably in another; are positions which I hold as strongly as any man, and they are such as most nations in the world appear clearly to recognize.

[regarding the Virginia act of expatriation] I have always thought the Virginia assembly shewed a very judicious foresight in this particular.

Whether the Virginia act of expatriation be now in force, is a question so important, that I would not wish unnecessarily to decide it.

Justice Cushing:

On the important right of expatriation, I do not think it necessary to give an opinion; but the doctrine mentioned by Heineccius, seems to furnish a reasonable and satisfactory rule. The act of expatriation should be bona fide, and manifested, at least, by the emigrant’s actual removal, with his family and effects, into another country. This, however, forms no part of the ground, on which I think the decree of the Circuit Court ought to be affirmed.

What is illuminating is that none of the Justices, all of whom were variously Founders, Framers, and Ratifiers, took any issue with the clearly stated natural law/law of nations assertions of the Appellant – nor did the Appellee. Indeed the Justices opinions echoed those ideas. Regarding expatriation, their concern was that a “statute of the United States, relative to expatriation is much wanted”, to “obviate doubts”.

_____

See also: “The True Law of Free Monarchies” published 1598 and 1603 by James VI of Scotland (James I of England) )

 

[1] The words of the law are these: ‘Whensoever any citizen of this Commonwealth, shall, by deed in writing, under his hand and seal, executed in the presence of, and subscribed by, three witnesses, and by them, or two of them proved in the General Court, any District Court, or the court of the County or Corporation where he resides, or by open verbal declaration made in either of the said courts, to be by them entered of record, declare that he relinquishes the character of a citizen, and shall depart out of this Commonwealth, such person shall, from the time of his departure, be considered as having exercised his right of expatriation, and shall thenceforth be deemed no citizen.’ Passed 23rd Dec. 1792.

Regarding Alexander Hamilton’s “Born Citizen” Requirement

“In any discussion of Hamilton’s formal suggestions for the proposed Constitution of the United States, it is important to keep in mind the distinction between the brief outline which he read in connection with his important speech of June 18 and the longer and more elaborate plan which, near the end of the sessions of the Convention, ‘was placed in Mr. Madison’s hands for preservation by Colonel Hamilton, who regarded it as a permanent evidence of his opinion on the subject.'”[1]

Alexander Hamilton – Attended the Convention on May 18; left June 29; was in New York after July 2; appears to have been in Philadelphia on July 13; attended Convention August 13; was in New York August 20–September 2.[2]

June 18 – Hamilton delivered his plan in a speech that “occupied in the delivery between five and six hours”[3] This is the speech that led to the famous charge that Hamilton advocated a monarchical system. This was denied, and it was replied, that “he proposed a system composed of three branches, an assembly, a senate, and a governor.  That the assembly should be elected by the people for three years, and that the senate and governor should be likewise elected by the people during good behaviour.”[4] There are several versions copied down, all of which specify the Executive “to be a governor elected, during good behavior, by electors chosen by the people in the election districts” (with slight variations in wording).

Hamilton’s more detailed plan given to Madison at the close of the Convention, states in Article IX § 1, No person shall be eligible to the office of President of the United States unless he be now a Citizen of one of the States, or hereafter be born a Citizen of the United States.[5]

This plan differs from that presented June 18.

According to a letter[6], Hamilton was chagrined when his plan (June 18) failed and he left the House in disgust (June 29), he returned however on a subsequent day (July 13?, August 13?) and delivered his sentiments in writing, then went to New York (August 20-September 2).

There is no record of any presentation by Hamilton on July 13 or August 13, although this does not rule out any written transmittal. If a written plan was delivered it may be lost.

Hamilton claimed the detailed plan given to Madison delineated the Constitution which he would have wished to be proposed by the Convention: He had stated the principles of it in the course of the deliberations.[7] It is true that he proposed a system composed of three branches, an assembly, a senate, and a governor. Although details vary it is the general structure of the government adopted. The detailed plan may have been political cover[8].

There is no way to know if any delegates knew of Hamilton’s “born a Citizen” idea. The record does not support any claim that they did.

_____

[1] See J. F. Jameson, Studies in the History of the Federal Convention of 1787, at 143

[2]  See 3 M. FARRAND, THE RECORDS OF THE FEDERAL CONVENTION OF 1787, at 588. Accessed at http://memory.loc.gov/cgi-bin/query/r?ammem/hlaw:@field%28DOCID+@lit%28fr003443%29%29

[3] See 1 M. FARRAND, THE RECORDS OF THE FEDERAL CONVENTION OF 1787, note 9, at 293. Accessed at http://memory.loc.gov/cgi-bin/query/r?ammem/hlaw:@field%28DOCID+@lit%28fr00198%29%29

[4] See 3 M. FARRAND, THE RECORDS OF THE FEDERAL CONVENTION OF 1787, at 395.  Accessed at http://memory.loc.gov/cgi-bin/query/r?ammem/hlaw:@field%28DOCID+@lit%28fr003315%29%29

[5] See 3 M. FARRAND, THE RECORDS OF THE FEDERAL CONVENTION OF 1787, at 619, 629. Accessed at http://memory.loc.gov/cgi-bin/query/r?ammem/hlaw:@field%28DOCID+@lit%28fr003449%29%29

[6] Anonymous Letter to Alexander Hamilton. New York Augt. 30th. 1793

A publication appeared some time since in Greenleaf’s paper, charging you with having moved in Convention that the Government of the United States should be by a King, Lords & Commons–I took some pains to discover the author of that piece, but without success — But a conversation lately happened between Comodore Nicholson & Mr. Leonard Bleeker, in the hearing of others, in which the Commodore said; he had read the piece before alluded to, but doubted the truth of it untill it was lately confirmed by Mr. Abraham Baldwin, who was also a member of the Convention–This Mr. Baldwin did publicly in a pretty large company at the Commodores own Table. He said your motion was seconded by Mr. Gover Morris & that you was so chagrined when it failed that you left the House in disgust; That you returned however on a subsequent day, delivered your sentiments in writing, & Came off to New york, declaring you intermeddle no farther in the matter — Notwithstanding you returned, & assented to the Constitution as it is — This writing he suggested contained your Ideas of the kind of Government proper to be adopted — In repeating from other persons, words are often changed; but the foregoing is the substance of what the Commodore reports Mr. Baldwin to have said — I leave to yourself the expediency of taking any notice of it.

See 3 M. FARRAND, THE RECORDS OF THE FEDERAL CONVENTION OF 1787, Appendix A, CCLXXI, at 369. Accessed at http://memory.loc.gov/cgi-bin/query/r?ammem/hlaw:@field%28DOCID+@lit%28fr003294%29%29

ed: An investigation of Baldwin’s papers might provide some clues as to whether Hamilton did supply a written plan upon his return (July 13 or August 13), and if so what the contents of that plan were.

[7] See 3 M. FARRAND, THE RECORDS OF THE FEDERAL CONVENTION OF 1787, at 619. Accessed at http://memory.loc.gov/cgi-bin/query/r?ammem/hlaw:@field%28DOCID+@lit%28fr003449%29%29

[8] Jared Sparks visit to James Madison, April 25th, 1830

recounts an anecdote

It is well known that Hamilton inclined to a less democratical form of government than the one that was adopted, although he was a zealous friend of the Constitution in its present shape after it had received the sanction of the Convention. He considered it less perfect than it might have been, yet he thought it an immense improvement on the old confederation. He drew up a plan in accordance with his own views, which he put into the hands of Mr. Madison, who took a copy of it, and returned the original to the author, telling him at the same time that he had preserved a copy. Mr. Madison says he knew not Hamilton’s motive for doing this, unless it was for the purpose of securing a written record of his views, which might afford a ready confutation of any future false statements respecting them.

See 3 M. FARRAND, THE RECORDS OF THE FEDERAL CONVENTION OF 1787, Appendix A, CCCLXVII, at 480. Accessed at http://memory.loc.gov/cgi-bin/query/r?ammem/hlaw:@field%28DOCID+@lit%28fr003390%29%29

Wong Kim Ark – The Single Question

The question presented by the record is whether a child born in the United States, of parents of Chinese descent, who, at the time of his birth, are subjects of the Emperor of China, but have a permanent domicil and residence in the United States, and are there carrying on business, and are not employed in any diplomatic or official capacity under the Emperor of China, becomes at the time of his birth a citizen of the United States by virtue of the first clause of the Fourteenth Amendment of the Constitution

[…]

The evident intention, and the necessary effect, of the submission of this case to the decision of the court upon the facts agreed by the parties were to present for determination the single question stated at the beginning of this opinion, namely, whether a child born in the United States, of parent of Chinese descent, who, at the time of his birth, are subjects of the Emperor of China, but have a permanent domicil and residence in the United States, and are there carrying on business, and are not employed in any diplomatic or official capacity under the Emperor of China, becomes at the time of his birth a citizen of the United States. For the reasons above stated, this court is of opinion that the question must be answered in the affirmative.

Order affirmed.

U.S. Law Applicable to Ted Cruz

Here is the U.S. law applicable to Ted Cruz.

The Nationality Act of 1940, Pub. L. 76-853; 54 Stat. 1137; was repealed by the McCarron-Walter Act of 1952, Pub. L. 82-414 § 403(a)(42); 66 Stat. 280

Several Amendments to McCarron-Walter:

Date              Statute
Nov. 6, 1966 Pub. L. 89–770 80 Stat. 1322;
physical presence requirements of § 301(a)(7) amended to include service in the Armed Forces
Oct. 27, 1972 Pub. L. 92–584, §§ 1, 3 86 Stat. 1289;
requirements of § 301(a)(7) amended to require two years physical presence between ages of 14 and 28 years old
Oct. 10, 1978 Pub. L. 95–432, §§ 1, 3 92 Stat. 1046;
retention requirements repealed
Nov. 14, 1986 Pub. L. 99–653, § 12 100 Stat. 3657;
Oct. 25, 1994 Pub. L. 103–416, § 101(a) 108 Stat. 4306;
technical changes

The law explicitly states “citizen”, not “natural born citizen”. The law could have stated “natural born citizen”, as was done by the 1790 statute, but it doesn’t.

For the Justice Gray Wong Kim Ark fans, the Supreme Court said:

“A person born out of the jurisdiction of the United States can only become a citizen by being naturalized, either by treaty, as in the case of the annexation of foreign territory, or by authority of congress, exercised either by declaring certain classes of persons to be citizens, as in the enactments conferring citizenship upon foreign-born children of citizens, or by enabling foreigners individually to become citizens by proceedings in the judicial tribunals, as in the ordinary provisions of the naturalization acts.” – U.S. v. Wong Kim Ark

N.B. they are speaking of United States law, not ancient English customary law.

This refutes claims that “citizen at birth” equals “natural born citizen” – the Supreme Court in WKA is quite clear on this point:  statutes “conferring citizenship upon foreign-born children of citizens” is naturalization.

Mr. Cruz is a naturalized citizen. His citizenship is acquired by statute, both he and his citizen parent having met the requirements of naturalization statute. The original grant was temporary and conditional, and subject to revocation. His citizenship is entirely a creature of positive law and granted by Congress.

Citizenship Status Domestically and Internationally

Countries by treaty have reciprocal recognition of their naturalization laws.

The international status of a foreign born child of a US citizen may vary depending upon treaty.

That person may visit a country with which the US has secured by treaty reciprocal naturalization understandings without fear of claims upon him by the foreign country.

That same person may visit a country with which the US has not secured by treaty reciprocal naturalization understandings but at the risk of claims upon him by the foreign country.

While this person’s domestic status is the same, his international status depends upon treaty.

A “natural born citizen” – a person born within the US with parental US citizenship – has no such risk. His domestic and international status is always the same, without any dependency upon law or treaty, no other nation may make any claim upon this person.

Can a person who’s international status is dependent upon law or treaty be said to be a “natural born citizen”?

Read more…

Ted Cruz

Ted Cruz was born “Rafael Edward Cruz” December 22, 1970 in Calgary, Alberta, Canada.

His mother is US citizen Eleanor Darragh.

His father is Cuban citizen Rafael B. Cruz. (naturalized as a U.S. citizen in 2005)

Eleanor Darragh and Rafael B. Cruz were residents of Canada for at least four years from 1970, possibly earlier, until 1974. They conducted business there as Rafael B. Cruz and Associates, Ltd.

He is a natural born citizen of Canada (Canadian Citizenship Act, R.S.C. 1970, c. C-19, s. 5(1,3))

Cruz is a naturalized US citizen (8 U.S.C. § 1401(g). Details)

Revised Statutes of Canada 1970:

revisedstatutesofcanada[1]

revisedstatutesofcanada[1]

revisedstatutesofcanadax[1]

revisedstatutesofcanada[1]

revisedstatutesofcanada[1]

Source: https://archive.org/stream/revisedstatutes197001uoft?ui=embed#page/n1098/mode/1up

Links to biographical info

http://www.dallasnews.com/news/politics/headlines/20120428-senate-candidate-ted-cruz-aims-to-pick-up-mantle-of-reagan.ece

http://www.dallasnews.com/news/state/headlines/20111025-a-tighter-lipped-cruz-lets-others-fill-in-blanks-on-cuban-fathers-exodus.ece

http://latino.foxnews.com/latino/politics/2013/04/08/ted-cruz-father-and-inspiration-talks-about-latinos-conservatives-and-american/

http://latino.foxnews.com/latino/politics/2012/04/15/ted-cruz-texas-answer-to-marco-rubio/

http://www.chron.com/news/politics/article/Cruz-s-life-defies-simplification-3946523.php

http://www.mylife.com/l-rafael-cruz-e151894652160

 

Law of Nature & Civil Law

I.

Nationality determines the political status of an individual, nationality determines allegiance.

Domicile determines civil status.

For example, a foreign national can not vote but is liable for a crime.

II.

A person born to foreign national(s) has divergent allegiance and civil status.

For example, from the Naturalization Act of 1790 until today, a child born abroad to US citizen parents is a US citizen – the nationality, the political status, of the child follows that of the parent.

The civil status of that child is, like that of the parents, determined by domicile.

Thus: A native born person’s allegiance and civil status may be divergent. The citizenship may be foreign, although not necessarily, and the civil status is determined by domicile.

III.

A person born in country to US citizen parents is a US citizen, the political status of the child follows that of the parent.

The civil status of that child is, like that of the parents, determined by domicile.

Allegiance and civil status coincide.

Thus: The law of nature and civil law coincide.

A natural born citizen is by law of nature (jus sanguinus) and civil law (jus soli).

 

 

An Ineligible Person Can Not Be Impeached

I.

Impeachment is a POLITICAL process, LEGAL matters are Judicial.

Impeachment is a political act of the Legislative Branch.

Conversely eligibility is a legal matter determined Judicially.

If eligibility were a political matter then there would be no set standard and the mandate of Article II § 1, cl 5 would become an arbitrary and shifting standard – a party controlling the Legislature & Executive could with impunity protect an ineligible person in the Executive. Article II § 1, cl 5 would be surplusage.

II.

Article II commands that an ineligible person shall not be President. A person who is not President can not be impeached.

Article II does not distinguish between ineligibility prior to an election or after, a person failing to meet the requirements is at all times legally disqualified.

Nothing can be added to the text, it must be taken as it is. If the Framers intended an exception they would have written one.

“No person except a natural born citizen, or a citizen of the United States, at the time of the adoption of this Constitution, shall be eligible to the office of President; neither shall any person be eligible to that office who shall not have attained to the age of thirty-five years, and been fourteen Years a resident within the United States.” U.S. Const. art. II, § 1, cl 5.

III.

A Judicial determination of eligibility is proper, indeed it is solely for the Judiciary to determine and for no other Branch.

IV.

The Legislature has no power to interfere with a Judicial determination of ineligibility.

There is no role for the Legislature, to allow an ineligible person to remain in Office on the premise that the Legislature has not impeached would obstruct the purpose of Article II § 1, cl 5.

V.

A Judicial determination of ineligibility is a removal from Office.

 

 

Commentary on United States v Wong Kim Ark

Congressional authority respecting citizenship extends to naturalization only.

U.S. Const. art. I, § 8, cl. 4.

To establish a uniform Rule of Naturalization, and uniform Laws on the subject of Bankruptcies throughout the United States;

“Citizen,” “naturalization” and “natural born Citizen” are ALL in the Original, unamended Constitution; therefore, none can mean the same thing.

Marbury v Madison:“It cannot be presumed that any clause in the constitution is intended to be without effect; and therefore such construction is inadmissible, unless the words require it.”

A citizen by statute can not be a natural born citizen.

Treaties are part of the supreme law of the land.

U.S. Const. art. VI, cl. 2.

This Constitution, and the Laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the constitution or laws of any state to the contrary notwithstanding.

Gray abrogated treaties with China.

Do note that the common law of England is not included, nor are the constitution or laws of any state. (So don’t bother commenting about state statutes, rulings, etc, eg Chancellor Sandford)

Aside from abrogating treaties, Gray applies the “common law” of England. England’s common law is not the supreme law, but foreign law.

Madison letter to Washington October 18, 1787

What could the Convention have done? If they had in general terms declared the Common law to be in force, they would have broken in upon the legal Code of every State in the most material points: they wd. have done more, they would have brought over from G.B. a thousand heterogeneous & antirepublican doctrines, and even the ecclesiastical Hierarchy itself, for that is a part of the Common law. If they had undertaken a discrimination, they must have formed a digest of laws, instead of a Constitution.”

Madison called the English common law “a dishonorable and illegitimate guide” in defining terms in the Constitution.

Aside from abrogating treaties and applying English common law, Gray deliberately misinterprets the jurisdiction clause of the Fourteenth Amendment.

The 14th Amendment:

Section. 1. 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. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

The Framers of the Fourteenth Amendment explained the jurisdiction clause:

Rep. Bingham:

The Fourteenth Amendment is “simply declaratory of what is written in the Constitution, that every human being born within the jurisdiction of the United States of parents not owing allegiance to any foreign sovereignty is, in the language of your Constitution itself, a natural born citizen.”

Sen. Trumbull:

“‘subject to the complete jurisdiction thereof.’ What do we mean by ‘complete jurisdiction thereof?’ Not owing allegiance to anybody else. That is what it means.”

Sen. Williams:

Senator during the drafting of Amend. XIV, later as US Attorney General ruled the word “jurisdiction” under Amend. XIV “must be understood to mean absolute and complete jurisdiction, such as the United States had over its citizens before the adoption of this amendment.” “Political and military rights and duties do not pertain to anyone else.”

The jurisdiction clause is specifically stated to be political allegiance, not territorial bounds.

Ignoring legislative history Gray “presumes” the intent of the jurisdiction clause:

The words “in the United States, and subject to the jurisdiction thereof” in the first sentence of the Fourteenth Amendment of the Constitution must be presumed to have been understood and intended by the Congress which proposed the Amendment, and by the legislatures which adopted it, in the same sense in which the like words had been used by Chief Justice Marshall in the well known case of The Exchange and as the equivalent of the words “within the limits and under the jurisdiction of the United States,” and the converse of the words “out of the limits and jurisdiction of the United States” as habitually used in the naturalization acts. This presumption is confirmed by the use of the word “jurisdiction” in the last clause of the same section of the Fourteenth Amendment, which forbids any State to “deny to any person within its jurisdiction the equal protection of the laws.” It is impossible to construe the words “subject to the jurisdiction thereof” in the opening sentence, as less comprehensive than the words “within its jurisdiction” in the concluding sentence of the same section; or to hold that persons “within the jurisdiction” of one of the States of the Union are not “subject to the jurisdiction of the United States.”

The Framers of the Fourteenth Amendment make clear that “subject to the jurisdiction thereof” is political and not geographic bounds, specifically stating “allegiance”. Gray ignores their intent conflating “jurisdiction” in the first sentence with the last. The first sentence confers citizenship, the last sentence applies law. These are entirely different matters, in the first instance political and in the last instance geographical.

Having misconstrued the jurisdiction clause as territorial Gray then proceeds to examine the common law of England.

To lend a sheen of legitimacy Gray cites State v. Manuel:

The term “citizen” as understood in our law, is precisely analogous to the term subject in the common law, and the change of phrase has entirely resulted from the change of government. The sovereignty has been transferred from one man to the collective body of the people – and he who before was a “subject of the king” is now “a citizen of the State.”

State v. Manuel is an 1838 case before the North Carolina Supreme Court. The following is the first portion of the paragraph containing the cited sentence:

It has been said that before our Revolution, free persons of colour did not exercise the right of voting for members of the colonial legislature. How this may hvae been, it would be difficult at this time to ascertain. It is certain however that very few, if any, could have claimed the right of suffrage, for a reason of a very different character than the one supposed. The principle of freehold suffrage seems to have been brought over from England with the first colonists, and to have been preserved almost invariably in the colony ever afterwards. In the act of 1743, ch. 1, (Swan’s Revisal, 171,) it will be seen that a freehold of fifty acres was necessary to entitle the inhabitant of a county to vote, and by the act of 2d Sept. of 1746, ch. 1, Ibid. 223, the freeholders only of the respective towns of Edenton, Bath, Newbern and Wilmington were declared entitled to vote for members of the Colonial Legislature. The very Congress which framed our constitution, was chosen by freeholders. That constitution extended the elective franchise to every freeman who had arrived at the age of 21, and paid a public tax; and it is a matter of universal notoriety that under it, free persons without regard to colour, claimed and exercised the franchise until it was taken from free men of colour a few years since by our amended constitution. But surely the possession of political power is not essential to constitute a citizen. If it be, then women, minors, and persons who have not paid public taxes are not citizens – and free white men who have paid public taxes and arrived at full age, but hove not a freehold of fifty acres, inasmuch as they may vote for one branch and cannot vote for the other branch of our legislature, would be in an intermediate state, a sort of hybrids between citizens and not-citizens. The term “citizen” as understood in our law, is precisely analogous to the term subject in the common law, and the change of phrase has entirely resulted from the change of government. The sovereignty has been transferred from one man to the collective body of the people – and he who before was a “subject of the king” is now “a citizen of the State.” Considering therefore the defendant as having a right to the protection of the clauses in the constitution and declaration of rights on which he relies, we proceed to the examination of the alleged repugnancy between these and the act of 1831. The 39th section of the constitution is in these words: “The person of a debtor, where there is not a strong presumption of fraud, shall not be continued in prison after delivering up bona fide all his estate, real and personal for the use of his creditors in such manner as shall be hereafter regulated by law.” ….

It is quite clear that Judge Gaston’s references to “our law” and “our constitution” are references to the statutes and Constitution of North Carolina. As North Carolina has a reception statute the cited sentence is true in North Carolina. The same can not be said for the federal government which does not incorporate common law via Constitution, reception statute, or other method. The cited sentence is inapplicable to the federal government.

Gray’s cite of Manuel to justify use of English common law is dishonest.

Gray’s use of English common law is inappropriate:

Jefferson letter to Edmund Randolph, August 18, 1799:

Of all the doctrines which have ever been broached by the federal government, the novel one, of the common law being in force and cognizable as an existing law in their courts, is to me the most formidable. All their other assumptions of un-given powers have been in the detail. The bank law, the treaty doctrine, the sedition act, alien act, the undertaking to change the State laws of evidence in the State courts by certain parts of the stamp act, &c. &c. have been solitary, unconsequential, timid things, in comparison with the audacious, barefaced and sweeping pretension to a system of law for the United States, without the adoption of their legislature, and so infinitively beyond their power to adopt.

Gray ignored legislative history of the Fourteenth Amendment and interpreted the intent of the jurisdiction clause territorially rather than politically ignoring the specifically stated intent of its Framers.

He arrogated to himself a system of law “infinitively beyond [his] power to adopt” and erected himself into a legislator deciding “what parts of the common law would, and what would not, be properly applicable to the circumstances of the United States” (Madison letter to Jefferson, Jan 18, 1800).

The holding is binding on lower courts: the SINGLE question of whether Wong was a citizen of the United States by virtue of the first clause of the Fourteenth Amendment was answered in the affirmative.

The rationale when erroneous is dicta. It has little value as precedent or guidance and is not binding on lower courts.

Neither Amend. XIV nor WKA touch Art. II’s eligibility requirements.

Conflating citizen, naturalized citizen, and natural born citizen is absurd, such construction is inadmissible.

English Oath of Fealty

Why did Judge Gray skip over more than a century of The Enlightenment and Acts of Parliament?

Why use Calvins Case rather than anything earlier or later?  Is there an “ancient” natural born subject  or was a convenient point in time picked?

Why not go back to the common law circa 1324 during the reign of Edward II?

 

The oath is listed in the Statutes of the Realm vol 1 as 17 Edw. 2

The True Law of Free Monarchies

A king explains why he should rule and you should bow.

The True Law of Free Monarchies: Or The Reciprocal and Mutual Duty Betwixt a Free King and His Natural Subjects

By King James I of England – 1598

As there is not a thing so necessary to be known by the people of any land, next the knowledge of their God, as the right knowledge of their alleageance, according to the form of government established among them, especially in a Monarchy (which form of government, as resembling the Divinitie, approacheth nearest to perfection, as all the learned and wise men from the beginning have agreed upon; Vnitie being the perfection of all things,)…

First then, I will set down the true grounds, whereupon I am to build, out of the Scriptures, since Monarchy is the true pattern of Divinitie, as I have already said: next, from the fundamental Lawes of our own Kingdom, which nearest must concern us: thirdly, from the law of Nature, by divers similitudes drawn out of the same: and will conclude syne by answering the most waighty and appearing incommodities that can be objected.

The Princes duty to his Subjects is so clearely set down in many places of the Scriptures, and so openly confessed by all the good Princes, according to their oath in their Coronation, as not needing to be long therein, I shall as shortly as I can run through it.

Kings are called Gods by the propheticall King Dauid, because they sit upon GOD his Throne in the earth, and have the count of their administration to give unto him. Their office is, To minister Justice and Judgement to the people, as the same David saith: To advance the good, and punish the evil, as he likewise saith: To establish good Lawes to his people, and procure obedience to the same, as divers good Kings of Judah did: To procure the peace of the people, as the same David saith: To decide all controversies that can arise among them  as Solomon did: To be the Minister of God for the weale of them that doe well, and as the minister of God, to take vengeance upon them that do evill, as S. Paul saith. And finally, As a good Pastour, to goe out and in before his people  as is said in the first of Samuel: That through the Princes prosperitie, the peoples peace may be procured, as Jeremie saith.

And therefore in the Coronation of our own Kings, as well as of every Christian Monarchy they give their Oath, first to maintain the Religion presently professed within their country, according to their laws, whereby it is established, and to punish all those that should presse to alter, or disturbe the profession thereof; And next to maintain all the lovable and good Laws made by their predecessours: to see them put in execution, and the breakers and violaters thereof, to be punished, according to the tenour of the same: And lastly, to maintaine the whole country, and every state therein, in all their ancient Priviledges and Liberties, as well against all forreine enemies, as among themselues: And shortly to procure the weale and flourishing of his people, not onely in maintain- ing and putting to execution the olde lowable lawes of the countrey, and by establishing of new (as necessitie and evil maners will require) but by all other meanes possible to foresee and prevent all dangers, that are likely to fall vpon them, and to maintain concord, wealth, and civilitie among them, as a loving Father, and careful watchman, caring for them more then for himselfe, knowing himselfe to be ordained for them, and they not for him; and therefore countable to that great God, who placed him as his lieutenant over them, vpon the perill of his soul to procure the weale of both soules and bodies, as far as in him lieth, of all them that are committed to his charge. And this oath in the Coronation is the clearest, civil, and fundamentall Law, whereby the Kings office is properly defined.

By the Law of Nature the King becomes a naturall Father to all his Lieges at his Coronation: And as the Father of his fatherly duty is bound to care for the nourishing, education, and virtuous government of his children; even so is the king bound to care for all his subiects. As all the toile and paine that the father can take for his children, will be thought light and well bestowed by him, so that the effect thereof redound to their profite and weale; so ought the Prince to doe towards his people. As the kindly father ought to foresee all inconvenients and dangers that may arise towards his children, and though with the hazard of his owne person presse to prevent the same; so ought the King towards his people. As the fathers wrath and correction vpon any of his children that offendeth, ought to be by a fatherly chastisement seasoned with pitie, as long as there is any hope of amendment in them; so ought the King towards any of his Lieges that offend in that measure. And shortly, as the Fathers chiefe ioy ought to be in procuring his childrens welfare, rejoycing at their weale, sorrowing and pitying at their evil, to hazard for their safetie, travell for their rest, wake for their sleepe; and in a word, to thinke that his earthly felicitie and life standeth and liveth more in them, nor in himselfe; so ought a good Prince think of his people.

As to the other branch of this mutuall and reciprock band, is the duety and alleageance that the Lieges owe to their King: the ground whereof, I take out of the words of Samuel, cited by Gods Spirit, when God had given him commandement to heare the peoples voice in choosing and annointing them a King. And because that place of Scripture being well understood, is so pertinent for our purpose, I have insert herein the very words of the Text.

9 Now therefore hearken to their voice: howbeit yet testifie vnto them, and shew them the maner of the King, that shall raigne ouer them.
10 So Samuel tolde all the wordes of the Lord vnto the people that asked a King of him.
11 And he said, This shall be the maner of the King that shall raigne ouer you: he will take your sonnes, and appoint them to his Charets, and to be his horsemen, and some shall runne before his Charet.
12 Also, hee will make them his captaines ouer thousands, and captaines ouer fif- ties, and to eare his ground, and to reape his haruest, and to make instruments of warre and the things that serue for his charets:
13 Hee will also take your daughters, and make them Apothicaries, and Cookes, and Bakers.
14 And hee will take your fields, and your vineyards, and your best Oliue trees, and giue them to his seruants.
15 And he will take the tenth of your seed, and of your Vineyards, and giue it to his Eunuches, and to his seruants.
16 And he will take your men seruants, and your maid-seruants, and the chiefe of your young men, and your asses, and put them to his worke.
17 He will take the tenth of your sheepe: and ye shall be his seruants.
18 And ye shall cry out at that day, because of your King, whom ye haue chosen you: and the Lord God will not heare you at that day.
19 But the people would not heare the voice of Samuel, but did say: Nay, but there shalbe a King ouer vs.
20 And we also willbe all like other Nations, and our King shall iudge vs, and goe out before vs, and fight our battels.

That these words, and discourses of Samuel were cited by Gods Spirit, it needs no further probation, but that it is a place of Scripture; since the whole Scripture is cited by that inspiration, as Paul saith: which ground no good Christian will, or dare deny. Whereupon it must necessarily follow, that these speeches proceeded not from any ambition in Samuel…  But by the contrary it is plaine, and evident, that this speech of Samuel to the people, was to prepare their hearts before the hand to the due obedience of that King, which God was to give vnto them; and therefore opened up unto them, what might be the intollerable qualities that might fall in some of their kings, thereby preparing them to patience, not to resist to Gods ordinance: but as he would have said; Since God hath granted your importunate suit in giving you a king, as yee have else committed an errour in shaking off Gods yoke, and over-hastie seeking of a King; so beware yee fall not into the next, in casting off also rashly that yoke, which God at your earnest suite hath laid upon you, how hard that ever it seeme to be: For as ye could not have obtained one without the permission and ordinance of God, so may ye no more, for he be once set over you, shake him off without the same warrant. And therefore in time arme your selves with patience and humilitie, since he that hath the only power to make him, hath the onely power to vnmake him; and ye onely to obey, bearing with these straits that I now foreshew you, as with the finger of God, which lieth not in you to take off.

All men are created equal – versus – kings are gods, a natural Father to all his Lieges upon his Coronation, and the duty and allegiance that the Lieges owe to their King is from the words of Samuel cited by Gods Spirit

(excerpted, some spelling modernized)

A Bill Declaring Who Shall Be Deemed Citizens of This Commonwealth – Thomas Jefferson

What is the meaning of this May 1779 Virginia statute?

Let’s examine the first part.

Be it enacted by the General Assembly, that all white persons born within the territory of this commonwealth and all who have resided therein two years next before the passing of this act, and all who shall hereafter migrate into the same; and shall before any court of record give satisfactory proof by their own oath or affirmation, that they intend to reside therein, and moreover shall give assurance of fidelity to the commonwealth; and all infants wheresoever born, whose father, if living, or otherwise, whose mother was, a citizen at the time of their birth, or who migrate hither, their father, if living, or otherwise their mother becoming a citizen, or who migrate hither without father or mother, shall be deemed citizens of this commonwealth, until they relinquish that character in manner as herein after expressed: And all others not being citizens of any the United States of America, shall be deemed aliens.

(available at http://press-pubs.uchicago.edu/founders/documents/a4_2_1s4.html )

Some contend that “all white persons born within the territory of this commonwealth” where citizens.

This is incorrect.

Take note of the semicolons:

Be it enacted by the General Assembly, that all white persons born within the territory of this commonwealth and all who have resided therein two years next before the passing of this act, and all who shall hereafter migrate into the same;

and shall before any court of record give satisfactory proof by their own oath or affirmation, that they intend to reside therein, and moreover shall give assurance of fidelity to the commonwealth;

and all infants wheresoever born, whose father, if living, or otherwise, whose mother was, a citizen at the time of their birth, or who migrate hither, their father, if living, or otherwise their mother becoming a citizen, or who migrate hither without father or mother, shall be deemed citizens of this commonwealth, until they relinquish that character in manner as herein after expressed:

And all others not being citizens of any the United States of America, shall be deemed aliens.

It is a complex sentence.

Semicolons are being used as “super commas”. There are several clauses separated by semicolons.

The first clause specifies the general case.

The second clause modifies the first clause by imposing conditions on it.

The third clause specifies a specific case.

The fourth clause specifies a specific case.

A rule of construction is that the specific terms of a statute override the general terms.

The specific terms of the third clause override the general terms of the first clause. Hence, the citizenship of the minor child follows that of the parents.

—–

Addendum

A reader wrote to say that these are modern rules of punctuation.

In 1784 Noah Webster first published his “Grammatical Institute of the English Language”, a brief excerpt of the 1800 edition is here.

Webster’s explanation of the rules of punctuation are taken directly from Robert Lowth’s 1762 book, “A Short Introduction to English Grammar”. A brief excerpt of the 1791 edition is here.

The rules of punctuation have been around a long time.

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