Tag Archives: Citizenship

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.

Citizenship and Naturalization – From Colonial to United States to Ark

In the beginning there where the Thirteen Colonies. The citizens of these Colonies were British subjects. These subjects may have emigrated from Great Britain, emigrated from elsewhere, or have been born in these colonies.

Upon the Declaration of Independence each of the colonies became separate independent sovereign states, and these British subjects became American Citizens.

Each of these sovereign states wrote constitutions and instituted a new frame of Government different from their colonial government.

To prevent anarchy, many states adopted portions of English common law except where it conflicted with their Constitution or laws.

Each sovereign state added new citizens by citizens giving birth and by naturalizing new citizens according to their state law.

After the Revolution those sovereign states joined in the Articles of Confederation. The Articles dealt primarily with mutual defense, amity between states, coinage, diplomatic and international issues.

Each state retained its sovereignty (Article II) and each state continued to add new citizens by birth and by naturalization under their state law.

Eventually the Constitution of the United States was adopted. State sovereignty continued to be retained by the Amendment X reservation of state powers. Notably, states ceeded to the United States their power of naturalization.

New citizens were added by citizens giving birth and by naturalizing new citizens according to United States law.

It is notable that these sovereign states have adopted two frames of government, both of which retain state sovereignty and neither of which adopt the English common law, in whole or in part.

Under the Articles of Confederation the states retained all their sovereign powers.

Under the Constitution the states ceeded all national concerns to the federal government. The Tenth Amendment makes clear that States retain only 1) those powers not delegated to the Federal government and 2) those powers not prohibited to states.

The United States is a compound republic. The Constitution defines how the sovereign states relate to each other as well as to the national government and it to them. The national government handles international affairs.

Under the Constitution there is a hierarchy of law:

• federal constitution
• treaties and acts of Congress
• State constitutions
• acts of State legislatures

This is unique and there is nothing like it found in English law.

Also:

• England does not have a written constitution
• Acts of Parliament can not be questioned
• English common law is customary domestic law, it is municipal in nature

By contrast, the United States has written constitutions and legislative acts are subject to judicial review.

The limited sovereignty of the states leaves them municipal duties and powers.

The supreme sovereignty of the federal government is national and international, not municipal.

For the reasons stated, unlike the states the Federal government does not and can not rely on English common law.

As is obvious: the common law of England is municipal in nature and ill suited to relations between sovereign states (both internal states and internationally). Relations between sovereign states is dealt with by the law of nations.

International relations are handled by the federal government. Naturalization is international by its very nature. Under the Constitution naturalization powers reside in the Federal government, not in the states, customary common law, or courts. Naturalization is controlled by legislated acts of Congress.

Let’s review the cases of citizenship and naturalization that arise prior to the Declaration of Independence and afterwards, and upon the adoption of the Constitution and afterwards:

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, by the grandfather clause of Art. II, this American Citizen is eligible to the Office of President*

Case 2

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, by the grandfather clause of Art. II, this American Citizen is eligible to the Office of President*

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, by the grandfather clause of Art. II, this American Citizen is eligible to the Office of President*

Case 4

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*

Case 5

Subsequent to the Declaration of Independence and prior to the Adoption an Alien naturalizes (under state law) and becomes a Citizen of one of the Thirteen States. At the Time of Adoption this American Citizen, by the grandfather clause of Art. II, is eligible to the Office of President*

Case 6

Subsequent to the Adoption an Alien naturalizes (under United States law) 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.

Case 7

Subsequent to the Adoption an Alien has a child. The child is Alien and is not 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

The Naturalization Act of 1790, et seq. specify the minor children of Aliens naturalize upon the naturalization of the parents.

These means that native born citizen is synonymous with natural born citizen.

There are two kinds of citizenship: native or natural born, and naturalized.

Subsequent to the ruling in United States v. Wong Kim Ark this is no longer true.

Broadening the “subject to the jurisdiction” clause of the 14th Amendment to include domiciled aliens which heretofore were not “subject to the jurisdiction”, the ruling created a distinction between native born citizen and natural born citizen.

This broadened interpretation of the 14th Amendment jurisdiction clause naturalized the children of certain aliens thus creating a distinction where none had existed.

Native born citizen and natural born citizen are no longer synonymous.

Early authorities that citizens born here were natural born citizens are correct. It is no longer true after Wong Kim Ark.

The United States and Mexican Claims Commission

It has for several years on various forums been repeatedly pointed out the conflicts of law created by:

º Claims that Naturalization Acts do not apply to alien parents’ US born children

º Claims that the 14th Amendment “subject to the jurisdiction thereof” clause applies to those alien children, that they are “subject to the jurisdiction” and therefore are citizens

º Claims that the Civil Rights Act of 1866 “not subject to any foreign power” clause somehow means other than what is plainly stated.

International conflicts of law may be settled by a commission.

In accord with Art. XXI of the Treaty of Guadalupe Hidalgo, to settle differences “by the arbitration of commissioners appointed on each side” [1], the United States and Mexican Claims Commission was established July 4, 1868.

The Commission consisted primarily of two commissioners, one to be appointed by the President of the United States, by and with the advice of the Senate, and the other by the President of Mexico. A third person was to act as an umpire in cases of disagreement. [2]

The commissioners were to hear “one person on each side on behalf of each government on each and every separate claim” and they were to decide “according to public law, justice, and equity” all claims laid before them.

Members of the Commission hearing the cases cited below were:

The commissioner for the United States was William Henry Wadsworth, with counsel Joseph Ashton, former Assistant Attorney-General of the United States.

The commissioner for Mexico was Francisco Palacio, also with counsel.

The umpire was Sir Edward Thornton, British minister to the United States.

Some of the more than 2000 cases heard by the Commission dealt with citizenship. Here, excerpted for space, are two such cases. Both cases are post 14th Amendment.

Thornton, umpire, April 22, 1876, Beniguo Santos Suarez v. Mexico, No. 716, convention of July 4, 1868

“The umpire is of the opinion that it is not proved that the claimant was a citizen of the United States. The ground that he is so, is his own statement that he was born at New York, together with a certificate of baptism of a child who was born at New York, Beniguo being one of the names which were given to him; but it is not proved that the child then born and baptised was one and the same person with the claimant. Nor would the mere fact of his having been born at New York be sufficient evidence of citizenship. It is clear that his parents were both aliens at the time of his birth, and it is not shown that they were naturalized or that they or the child remained in the United States. The inference is to the contrary, and the umpire believes that the child in question, even if that child was really the claimant, though born in the United States, was subject to a foreign power and cannot without further proof be considered to be a citizen of the United States” (emphasis added) [3]

Bernard J. Gautier v. Mexico, No. 958, United States and Mexican claims commission, convention of July 4, 1868

Claimant was born in Texas of French parents, and at the age of 19 years removed to Matamoras, Mexico, with his mother, a widow, where they established a commercial house. When Maximillian was sent to Mexico by Napolean III to establish an empire, a treaty was agreed upon between the two by which the so called Mexican Empire became bound to pay such claims of French subjects against Mexico as might be approved by a mixed commission. Claimant appeared before that commission… The French and Mexican mixed commission considered him entitled to French nationality, admitted his claim, and made an award in his favor for $1,000.

The commissioners, Mr. Palacio delivering the opinion, held that, as it did not appear that the parents of the claimant were naturalized during their residence in Texas, it was to be presumed that they retained their original French nationality; that the claimant, who left the United States before arriving at the age of 21 years, was entitled, according the the French code, to retain the nationality transmitted by his parents; that the laws of Mexico did not forbid such election; but that he was not entitled to renounce his French nationality and elect that of the United States, after he had abandoned that latter country to establish himself in another, and after he had made a valid act of adoption of French nationality.” (emphasis added) [4]

Had the claimant remained in the United States he would have retained the right of election, his right to renounce his French nationality or elect that of the United States.

These cases illustrate:

º Naturalization Acts do apply to alien parents’ US born children

º The 14th Amendment “subject to the jurisdiction thereof” clause does not produce citizens from alien parents’ US born children, the children are themselves alien

º The Civil Rights Act of 1866 “not subject to any foreign power” clause means what is plainly stated

Finally, it is my great pleasure to point out the case of Christian Gatter [5].

“The claimant was brought to the United States while a minor by his father from Germany. He claimed citizenship though the naturalization of his father, but did not prove the naturalization.

The umpire, observing that there was no proof of the naturalization of the father, said: ‘The fact that he (the father) voted or even held office in the State of Illinois is no proof that he was a citizen of the United States. And if he was not, neither was his son, who does not pretend to have been naturalized.” (excerpted, emphasis added)

Note well judge Carroll (Voeltz v. Obama): contrary to your “miracle”, holding office is not proof of citizenship.

[1] Treaty of Peace, Friendship, Limits, and Settlement with The Republic of Mexico, 9 Stat. 922, 939 (1848) available at memory.loc.gov/ammem/amlaw/lwsllink.html

[2] John Bassett Moore, 2 History And Digest Of The International Arbitrations To Which The United States Has Been A Party, 1287 (1898) available at books.google.com

[3] Id. at 2449

[4] Id. at 2450

[5] Id. at 2547

By grace of Providence, with prayer for protection

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.

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.

The Time of Adoption

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 timeof the adoption of this Constitution, shall beeligible 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.”

This diagram helps clarify who those eligible “at the time of adoption” are.