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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…

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).

 

 

New Jersey Obama Ballot Access Objection

It has been my practice to post research regarding “natural born citizen”, and in this post I make an exception to comment on a recent New Jersey court ruling.

In the Purpura and Moran New Jersey Obama Ballot Access Objection, Obama’s attorney in New Jersey, Ms. Hill, claimed that “candidate” refers to delegates rather than the person seeking the office.

The position is that “During the primary elections, the voters do not vote for a candidate, but rather they vote for the delegates who are candidates for the office of the party delegate…”

Although I am not an attorney, I believe this to be an obvious error.

The process is clearly defined, there should be no confusion.

Petitioners indorse the person named in their petition as candidate for nomination for the office therein named. N.J.S.A. 19:23-7

Petitioners request that the name of the person therein mentioned be printed upon the official primary ballots of their political party as the candidate for such nomination. 19:23-7

A reading of the law indicates that the persons seeking office are to be listed on the Ballot as Candidates for nomination.

Let’s see how the law has been implemented.

Here is the “Official List of Candidates for President For February 2008 Primary Election”

http://www.state.nj.us/state/elections/election-results/2008-official-presidential-primary-candidates-121807.pdf

Note that the persons officially listed as Candidates are the persons seeking office.

Here is a “2008 Official Presidential Primary Election Sample Ballot”

http://www.co.hunterdon.nj.us/election/2008presidental/9thDistrictSample.pdf

Note that the persons listed on the official sample Ballot are the Candidates listed on the Official List of Candidates for President For February 2008 Primary Election

Note the Instructions for Voting, “PRESS THE BUTTON TO THE RIGHT OF THE CANDIDATE OF YOUR CHOICE; A GREEN ARROW WILL APPEAR SIGNIFYING YOUR SELECTION.” Please direct your attention to “CANDIDATE OF YOUR CHOICE”

As the above shows, the persons seeking office are in fact listed on the Ballot as Candidates. Voters do in fact cast Ballots for their choice of Candidate for nomination.

The law (19:23-7) has been implemented consistent with our reading of the law which indicates that the persons seeking office are to be listed on the Ballot as Candidates for nomination, and that Voters cast Ballots for a Candidate for nomination.

This demonstrates that Voters to not cast Ballots for delegates.

N.J.S.A. 19:3-3 specifies, “Delegates… to the national conventions of the political parties shall be elected at the primary election…”

Delegates are elected, and pursuant to Party rules allocated and apportioned to appear at the Party’s national Convention, “pledged” to a particular Candidate. During the process of the Convention a Candidate for the General Election is chosen by those Delegates. Delegates are elected to implement these internal Party mechanisms.

Primary Voters cast Ballots for Candidates for nomination, BUT delegates are elected. “Delegate” and “Candidate” are distinct, specified by statute, and can not be conflated.

A provision of 19:23-7 is that “Accompanying the petition, each person indorsed therein shall file a certificate, stating that he is qualified for the office mentioned in the petition…” It is disputed that the Candidate (eg, Clinton, Obama, Kucinich) is not required to certify that they are qualified for the office. Flacks contend that it is the delegates who must certify that they are qualified. This is partially true.

According to 19:23-7, Petitioners shall set forth that the signers thereof are:

  1. qualified voters of       
            • the State
            • congressional district
            • county, or county election district
            • municipality
            • ward or election district

    as the case may be, in which they reside and for which they desire to nominate candidates;

  2. that they are members of a political party (naming the same),
  3. that they intend to affiliate with that political party at the ensuing election;

The other part of the truth is, the plain text of 19:23-7, “Accompanying the petition, each person indorsed therein shall file a certificate, stating that he is qualified for the office mentioned in the petition…” As previously shown, the person indorsed on the petition is the Candidate.

Obama is required to certify that he is qualified for office.

The Impossibility of English Common Law & the Federal Govt.

I have discovered an excellent explanation as to why English common law can not be the basis of the Federal govt.

The explanation is found in the Appendix to “Correspondence between George Nicholas Esq. of Kentucky, and the Hon. Robert G. Harper of South Carolina, on the subject of the Alien and Sedition Laws, 1798”

The Appendix is titled, “Observations of Judge Addisons Charge to the Grand Jury On the Liberty-of-the-Press”

Here, heavily paraphrased, is the thrust of the argument:

Could the common law of England become part of the law of the United States by its being part of the law of each of the states, at the time of the adoption of the Constitution?

Although this would be giving efficacy to the inferior instead of the superior, let it be considered.

The law of each state prior to the adoption of the Constitution consisted of the common law of England, the state constitution, and the acts of the state legislature.

The common law of England then was only one of three pillars on which the law of each state was built. It was also the weakest of the three; because it ceased to have any efficacy as law as soon as it was clearly contradicted by either of the others.

If the common law became a part of the law of the United States, because it was part of the law of the individual state, the other two parts of the law of those states must also become a part of the law of the United States, and for the same reason.

But it may be said that these other two parts of the law of each state were dissimilar in the different states, and therefore could not become a part of the law of the United States; whereas the common law of England, in every state being the same, it might become the common law of the United States.

Is the common law of England in every state the same?

The acts of the British parliament are in force in the different states up to different periods; in some to the reign of one king, in others to that of a different king.

Thus the common law of England would be different in these two states.

But the great difference which has been made in the common law in the different states, has proceeded from the changes which have been made in it, by the acts of all the legislatures of the different states, from the time of their first settlement.

Not only is the common law of England different among the states, each state legislature has altered it in different ways; thus the common law of the various states is in no way uniform.

The common law being materially different in all the sates, how can there be any common law in the United States? How shall it be determined which of the states shall be considered as the standard, so far as to make their common law, the common law of the United States? Shall it be a majority of the states; or shall it be those states which contain a majority of the people of the United States? &c &c

Incorporation of the common law into the Federal govt is impracticable.

Has the common law of England been declared to be a part of the law of the United States by the Constitution?

The constitution declares, that “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.”

The common law of England has not been declared to be a part of the law of the United States by the Constitution.

Therefore, in no way can the Federal govt. be said to be based on, or to have incorporated, the common law of England.

The relevant pages of the original document, as well as a transcript from those images, is available at scribd:

Or go to the Library of Congress
http://memory.loc.gov/cgi-bin/query/r?ammem/fawbib:@field%28DOCID+@lit%28bbf0081%29%29

The Absurdity of the “US Birth = Natural Born” Position

“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…” U.S. Const. art. II, § 1, cl 5.

Two circumstances are enumerated, each specifying the requirements applicable in that circumstance.

The circumstances are “at the time of the adoption of this Constitution”, and “all other times”.

The requirements applicable in each circumstance are “citizen” and “natural born citizen”, respectively.

Citizens are added to the United States by naturalization and by birth in the United States. The 14th Amendment defined “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”.

Art. I, § 8, cl. 4 delegates to Congress the power to “establish a uniform Rule of Naturalization”.

Legislation enabling Art. I, § 8, cl. 4 can add individuals to the set of people termed “citizen”, or remove individuals from the set of people termed “citizen”. The only other way an individual can be termed “citizen” is by birth in the United States.

The term “citizen” is applicable only “at the time of the adoption of this Constitution”

At all other times the requirement is “natural born citizen”.

There is no provision in the Constitution delegating to Congress the power to “establish a Rule of Natural Born Citizenship”. Accordingly, there is no enabling legislation which adds individuals to the set of people termed “natural born citizen”, or remove individuals from the set of people termed “natural born citizen”.

This tells us two things:

1) “natural born citizen” exists without any requirement for enabling legislation
2) the meaning is generally understood

What individuals could be in the set of people termed “natural born citizen”?

Obviously, naturalized citizens can not be included due to reliance on enabling legislation as well as the fact that naturalization produces indivduals termed “citizen” rather than “natural born citizen”

What about all persons born in the United States as per the 14th Amendment? The 14th Amend. defines persons termed “citizen” rather than “natural born citizen”

There must be some other factor.

The noun “citizen” in the first clause is qualified by the adjective “natural born”. This rule is ordinary English, the noun is modified by the adjective such that only those nouns having the specific characteristic are included. Therefore:

1) “Natural born citizen” is more specific than “citizen”
2) “Natural born citizen” is a subset of “citizen”
3) “Natural born” is a specific characteristic appertaining to some citizens but not all

Birth in the United States is a necessary element for “citizen” and is, on its own, sufficient for “citizen”.

“Natural born citizens” are a subset of “citizens”. Therefore birth in the United States is a necessary element for “natural born citizen” but is, on its own, insufficient for “natural born citizen”.

Only some citizens “born in the United States” are “natural born citizens”.

People “born in the United States” are born to parents who are either citizens or aliens.

Which citizens “born in the United States” are “natural born citizens”, the children of citizens or the children of aliens?

It would be irrational to grant to the children of aliens, and deny to the children of citizens, the privilege of eligibility for the Office of President.

“Natural born citizen” must mean citizens born from citizen parents.

The meaning of Article II is self-evident.

Founding Era Article II Eligibility

Article II, Section 1, Clause 5, Constitution of the United States

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.

Diagram of Native, Natural, and Naturalized Citizens during the Founding Era

Case 1

A British Subject in and Citizen of one of the Thirteen Colonies becomes, at the signing of the Declaration of Independence, an American Citizen. At the Time of Adoption this American Citizen is eligible to the Office of President provided:

• they are at least thirty-five years old
• have been fourteen years a resident within the United States

Case 2

A British Subject in and Citizen of one of the Thirteen Colonies has a child after the Declaration of Independence. The parents become, at the signing of the Declaration of Independence, American Citizens. The child, born from American Citizen parents, is a natural born Citizen. This natural born American Citizen is eligible to the Office of President provided:

• they are at least thirty-five years old
• have been fourteen years a resident within the United States

Case 3

A British Subject in and Citizen of one of the Thirteen Colonies has a child prior to the Declaration of Independence. This child is a British Subject and a native born Citizen of the Colony. At the signing of the Declaration of Independence this British Subject becomes an American Citizen. At the Time of Adoption this American Citizen is eligible to the Office of President provided:

• they are at least thirty-five years old
• have been fourteen years a resident within the United States

Case 4

An Alien naturalizes and becomes a British Subject in and Citizen of one of the Thirteen Colonies. Upon the signing of the Declaration of Independence, he becomes an American Citizen. At the Time of Adoption this American Citizen is eligible to the Office of President provided:

• they are at least thirty-five years old
• have been fourteen years a resident within the United States

Case 5

An Alien naturalizes and becomes a Citizen of one of the Thirteen States. At the Time of Adoption this American Citizen is eligible to the Office of President provided:

• they are at least thirty-five years old
• have been fourteen years a resident within the United States

Case 6

An Alien naturalizes after the Adoption and becomes a Citizen of the United States. This Citizen is not eligible to the Office of President, they were not a Citizen at the Adoption nor are they a natural born Citizen.

A PDF copy is available.

The Grandfather Clause

“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;” – Art. II, Sec. 1, Cl. 5

A distinction is made between a “citizen” and a “natural born citizen”, this much is self evident.

The purpose of the grandfather clause is to allow Revolution Era patriots born outside the country to be eligible for the Presidency.

Not just Revolution Era patriots born outside the country, but only those who were citizens at the time of the adoption of the Constitution are eligible.

So what citizens born outside the country would be citizens at the time of adoption? They are those:

I. Foreign born English subjects (however they came to be such) in the several Colonies who became US citizens by the naturalization power of the Declaration of Independance

II. Naturalized by one of the states while under the Articles of Confederation

English subjects naturalized by the Declaration of Independance includes those born in one of the Colonies, as well as those born someplace else as in Case I above. The place of birth is not a factor in their eligibility, it is their naturalization which makes them eligible.

There are natural born citizens, naturalized citizens, and aliens.

If the intended prohibition was “all citizens except naturalized citizens” Article II would have been worded so.

The time of the adoption is the only time naturalized citizens are eligible. They are citizens included in the “citizens at the time of adoption” clause – but they are naturalized citizens, as differentiated from natural born citizens.

Natural born citizens must obviously be born from citizens.[1]

More at http://www.scribd.com/doc/65871038

The meaning of Article II, Section 1, Clause 5 is self evident.
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[1] United States Naturalization Law states that children of aliens naturalize upon the naturalization of their parents. Aside from aliens who else is in country?

Naturalized citizens, who are ineligible except at the time of adoption.

Citizens born from naturalized citizens and citizens born from native born citizens, both of whom are citizens born from citizens, ie natural born citizens.

Natural Rights, Natural Law, and Natural Born

A clear understanding of terms is necessary for a meaningful discussion.

The origin and principle of Natural Law, the origin and purpose of Positive Law, and the relationship of each to Natural Rights must be understood.

  1. Mankind in its natural state posesses Natural Rights
  2. These Rights are inalienable
  3. Mankind is seperated from the beasts by the light of Reason
  4. Natural Law is the law of right Reason
  5. Mankind is social and forms Societies
  6. Natural Law dictates the necessity of restraint of Natural Rights within a Society, for Reason dictates: “do unto others as you would have them do unto you”. This fundamental principle is a credo universally accepted by all societies.
  7. Natural Law is the first restraint on Natural Rights
  8. Mankind is Fallible
  9. Mankind will deviate from the universal credo
  10. Mankind will make errors of Reason
  11. Mankind will have disagreements of Reason
  12. To secure Natural Rights to the degree possible and agreed to, a Society must institute Government
  13. Government issues Positive Law
  14. Natural Rights are secured through Positive Law
  15. Positive Law derives its Power and Legitimacy from Natural Law, and its Authority and Enforcability from Government
  16. Government Authority is derived from the Consent of the Governed

 

All are born posessing Natural Rights. Those Rights exist until death.

In Society, as a consequence of Natural Law, Natural Rights are restrained by Positive Law.

The restraint of a Natural Right is not an elimination of that Right.

Upon birth, children are members of a family, as is their Natural Right. The child has a Natural Right to the parents, and to no one else. The parents, and no one else, have a Natural Right to the child, and to no one else.

There is no Natural Right to membership in another family.

There is no Natural Right to membership in another family’s nation, or their Society.

The family is a member of their tribe/nation and its Society.

Members of Society born from members of Society is the natural due course of events untended by Positive Law.

A Society may by Positive Law admit others.

All members of Society are termed Citizens.

Citizens born from Citizens are Natural Born Citizens.